[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 110-166]
IMPLICATIONS OF THE SUPREME
COURT'S BOUMEDIENE DECISION FOR
DETAINEES AT GUANTANAMO BAY, CUBA:
NON-GOVERNMENTAL PERSPECTIVE
__________
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
JULY 30, 2008
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Tenth Congress
IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina DUNCAN HUNTER, California
SOLOMON P. ORTIZ, Texas JIM SAXTON, New Jersey
GENE TAYLOR, Mississippi JOHN M. McHUGH, New York
NEIL ABERCROMBIE, Hawaii TERRY EVERETT, Alabama
SILVESTRE REYES, Texas ROSCOE G. BARTLETT, Maryland
VIC SNYDER, Arkansas HOWARD P. ``BUCK'' McKEON,
ADAM SMITH, Washington California
LORETTA SANCHEZ, California MAC THORNBERRY, Texas
MIKE McINTYRE, North Carolina WALTER B. JONES, North Carolina
ELLEN O. TAUSCHER, California ROBIN HAYES, North Carolina
ROBERT A. BRADY, Pennsylvania W. TODD AKIN, Missouri
ROBERT ANDREWS, New Jersey J. RANDY FORBES, Virginia
SUSAN A. DAVIS, California JEFF MILLER, Florida
RICK LARSEN, Washington JOE WILSON, South Carolina
JIM COOPER, Tennessee FRANK A. LoBIONDO, New Jersey
JIM MARSHALL, Georgia TOM COLE, Oklahoma
MADELEINE Z. BORDALLO, Guam ROB BISHOP, Utah
MARK E. UDALL, Colorado MICHAEL TURNER, Ohio
DAN BOREN, Oklahoma JOHN KLINE, Minnesota
BRAD ELLSWORTH, Indiana PHIL GINGREY, Georgia
NANCY BOYDA, Kansas MIKE ROGERS, Alabama
PATRICK J. MURPHY, Pennsylvania TRENT FRANKS, Arizona
HANK JOHNSON, Georgia BILL SHUSTER, Pennsylvania
CAROL SHEA-PORTER, New Hampshire THELMA DRAKE, Virginia
JOE COURTNEY, Connecticut CATHY McMORRIS RODGERS, Washington
DAVID LOEBSACK, Iowa K. MICHAEL CONAWAY, Texas
KIRSTEN E. GILLIBRAND, New York GEOFF DAVIS, Kentucky
JOE SESTAK, Pennsylvania DOUG LAMBORN, Colorado
GABRIELLE GIFFORDS, Arizona ROB WITTMAN, Virginia
NIKI TSONGAS, Massachusetts
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
Erin C. Conaton, Staff Director
Paul Oostburg, Professional Staff Member
Thomas Hawley, Professional Staff Member
Caterina Dutto, Staff Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2008
Page
Hearing:
Wednesday, July 30, 2008, Implications of the Supreme Court's
Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Non-
Governmental Perspective....................................... 1
Appendix:
Wednesday, July 30, 2008......................................... 51
----------
WEDNESDAY, JULY 30, 2008
IMPLICATIONS OF THE SUPREME COURT'S BOUMEDIENE DECISION FOR DETAINEES
AT GUANTANAMO BAY, CUBA: NON-GOVERNMENTAL PERSPECTIVE
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hunter, Hon. Duncan, a Representative from California, Ranking
Member, Committee on Armed Services............................ 3
Skelton, Hon. Ike, a Representative from Missouri, Chairman,
Committee on Armed Services.................................... 1
WITNESSES
Davis, Col. Morris D., USAF, Former Chief Prosecutor, Office of
Military Commissions (2005-2007)............................... 14
Katyal, Neal K., Paul and Patricia Saunders Professor of National
Security Law, Georgetown University Law Center................. 10
Klingler, Richard, Partner, Sidley Austin LLP.................... 12
Oleskey, Stephen H., Partner, Wilmer Cutler Pickering Hale and
Dorr LLP, Counsel for the Guantanamo Prisoners in Boumediene v.
Bush........................................................... 7
APPENDIX
Prepared Statements:
Davis, Col. Morris D......................................... 102
Katyal, Neal K............................................... 74
Klingler, Richard............................................ 91
Oleskey, Stephen H........................................... 55
Documents Submitted for the Record:
[There were no Documents submitted.]
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
[There were no Questions submitted post hearing.]
IMPLICATIONS OF THE SUPREME COURT'S BOUMEDI-
ENE DECISION FOR DETAINEES AT GUANTANAMO BAY, CUBA: NON-GOVERNMENTAL
PERSPECTIVE
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Wednesday, July 30, 2008.
The committee met, pursuant to call, at 10:04 a.m., in room
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman
of the committee) presiding.
OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM
MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. Our committee will come to order.
Two hundred and twenty years ago, one of our founding
fathers, Alexander Hamilton, warned that the imprisonment of
individuals in distant or unknown locations without due process
is a very dangerous engine of arbitrary government.
To guard against the tendencies of such governments,
Hamilton advocated for the centuries-old power of British
courts to order wardens to bring prisoners before it, so that a
judge as a neutral third party could inquire into the basis for
continued detention. This is the power of habeas corpus, or
what became known as the ``Great Writ.''
The Military Commissions Act (MCA) of 2006, which was
enacted in the last Congress, stripped our federal courts of
this bulwark of our Constitution. As a result, the
Administration received the green light to be jailer, judge,
and jury, and it gladly revved its engine.
The engine roared until the highest court in our land
determined that the price of fuel for that engine was more than
our Constitution could bear. Last month, the Supreme Court, in
a five-to-four opinion, decided that the detainees who were
being held at the U.S. Navy station in Guantanamo Bay, Cuba, do
have the habeas corpus privilege under the suspension clause of
the Constitution and that Section 7 of the Military Commissions
Act is unconstitutional.
As a former prosecutor, it is gratifying to know that the
federal courts will resume their traditional role of ensuring
that only the corrupt remain behind bars.
While I still believe the current military commissions
system has some other significant weaknesses, this ruling of
the court will help by ensuring that any commission ruling
which is designed to bring terrorists to justice can better
withstand judicial scrutiny, for certain convictions must go
hand-in-hand with tough prosecution.
In addition to the now largely addressed habeas issue, I
have repeatedly identified six other potential unlawful defects
in the current military commissions framework.
First, the Military Commissions Act may violate the
exceptions clause under Article III of the Constitution by
impermissibly restricting the Supreme Court's review.
Second, it is questionable whether the Supreme Court would
uphold a system that purports to make the President the final
arbiter of the Geneva Convention.
Third, the provisions regarding coerced testimony may be
challenged under our Constitution.
Fourth, the act contains very lenient hearsay rules, which
rub up against the right of the accused to confront witnesses
in evidence, as guaranteed by the Constitution.
Fifth, the act may be challenged on equal protection and
other constitutional grounds for how it discriminates against
the detainees for being aliens.
Last, Article I of the Constitution prohibits ex-post-facto
laws, and that is what this act may have created.
Although I don't anticipate that all of these issues will
be resolved before high-value detainees, such as Khalid Sheikh
Mohammed, self-confessed mastermind of 9/11, go to trial, I
have confidence that the courts and we here in our Congress
will be deliberate and decisive, rather than recklessly
headstrong on how we approach these very difficult questions.
We must make sure that the verdicts of the military juries
stick.
I look forward to hearing from our witnesses today.
We have as our witnesses in front of us Stephen Oleskey, a
partner in Wilmer, Cutler, Pickering, Hale, and Dorr, and has
represented six Bosnian Algerian men who have been detained at
Guantanamo since 2002. Mr. Oleskey was awarded the 2007
American Bar Association Pro Bono Publico Award, largely
because of his work on habeas corpus.
Would you raise your hand? We will know who is who. There
you are. Thank you very much.
Next witness: Neal Katyal is a Saunders professional in
national security law at Georgetown University Law School. In
Hamdan v. Rumsfeld, he successfully argued before the Supreme
Court that the Military Commissions Act, which predated the
Military Commissions Act, were unconstitutional.
Would you raise your hand? Just want to thank you.
Richard Klingler, who served as the National Security
Council's general counsel and legal adviser from 2006 to 2007
and is a partner in the law firm of Sidley Austin.
Thank you.
Mr. Morris Davis, colonel in the United States Air Force,
although he is testifying as a civilian while on terminal
leave. Colonel Davis was formerly the chief prosecutor for the
Office of Military Commissions.
We certainly appreciate your being with us and giving us
your thoughts on this highly important issue.
Ranking Member Duncan Hunter.
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM
CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Hunter. Thank you, Mr. Chairman. And thanks for holding
this important hearing.
And I would simply note that Alexander Hamilton, however,
never recommended that habeas be given to prisoners of war
(POWs). In fact, the habeas rights that have been directed by
the court's decision are rights that terrorists have at this
point, which no American soldiers have.
Over the last couple of years, this committee has spent a
lot of time focusing on our detainee policy for the global war
on terrorism. And the policy that the committee advanced took
into account that this war against terror has produced a new
type of battlefield and a new type of enemy.
In the last Congress, we worked hard to pass the Detainee
Treatment Act (DTA) and the Military Commissions Act, MCA,
ensuring that the United States is able to detain, interrogate,
and try terrorists.
We had a practical problem that we had to address, this new
type of war that doesn't involve particularly uniformed
adversaries on the battlefield, but nonetheless very deadly
adversaries. And we had to do so in a manner that is consistent
with the Constitution and the international rules of war.
As the attorney general recently remarked about the DTA and
the MCA, the Detainee Treatment Act and the Military
Commissions Act, and he said, ``These laws give more procedural
protections than the United States or any other country, for
that matter, had ever given to war-time captives, whether those
captives were lawful soldiers in foreign armies or unlawful
combatants who target civilians and hide in civilian
populations.''
And, Mr. Chairman, I just asked the staff, as we kick this
thing off, to give me the list of procedural protections that
we gave to accused terrorists when we put this bill together.
Let me just go over these because I think this is important.
The right to counsel, none of our POWs have that. The
presumption of innocence, POWs don't have that. Proof beyond a
reasonable doubt, opportunity to obtain witnesses and other
evidence, right to discovery, exculpatory evidence provided to
defense counsel.
Statements obtained through torture are excluded.
Classified evidence must be declassified, redacted or
summarized to the maximum extent possible. Statements allegedly
obtained through coercion are only admissible if the military
judge rules that the statement is reliable and probative. A
certified, impartial judge will preside over all proceedings of
individual military commissions.
The U.S. Government must provide defense counsel, including
counsel with the necessary clearances to review classified
information on the accused terrorists they have. In capital
cases, the military commissions' 12 panelists must unanimously
agree on the verdict, and the President has a final review.
Panel votes are secret ballot, which ensures panelists are
allowed to vote their own conscience. Right to appeal to a new
military--a new court, a military commissions review, and the
Court of Appeals for the District of Columbia, and the right
against double jeopardy.
Those, gentlemen, were derived from our scrutiny of other
councils that were similar, tribunals, including Nuremberg,
Rwanda, and others. And I think you could accurately say that
we actually gave more rights to accused terrorists than any
councils, any tribunals ever assembled.
If you have got some others that give more rights to
accused terrorists, I would like to hear about it. And if you
don't think that list of rights is long enough, I would like to
know what you think we should--what additional rights we should
give.
And once again, the right to habeas is a right that no
American soldier enjoys.
This is a delicate and carefully balanced framework, agreed
to by the large majorities in both Houses of Congress, and it
was thrown into question as a result of the recent Supreme
Court decision in Boumediene. And in a deeply divided opinion,
a five-to-four majority made the unprecedented decision to
afford a constitutional right of habeas corpus on alien enemies
detained abroad by our military forces in the course of an
ongoing war.
And while I disagree with the court's opinion, the decision
is now the law of the land. The challenge before the committee
today is clarifying the implications of the Supreme Court
decision.
Though some of our panelists today advance the argument
that the Supreme Court decision suggests other constitutional
infirmities with the Military Commissions Act that warrant
congressional action, I continue to believe that absent an
explicit decision by the court that the commissions process is
unconstitutional, the trials should go forward without
congressional interference.
It is important to note that the majority in Boumediene
addressed the process for status determinations regarding
detention. The court was silent with respect to commissions.
Currently there are 20 commissions in the works, and the
first trial has just commenced. Under the MCA, each of the
accused will have the right to appeal a guilty verdict to the
Court of Military Commission Review, to the Court of Appeals
for the D.C. court circuit, and then to the Supreme Court.
I encourage the committee to heed the underlying principle
of Chief Justice Roberts' dissent in Boumediene: ``We should
not rush to judgment on the constitutionality of the
commissions until the process is complete and the trials have
exhausted their reviews.''
As we meet today, the case against the 9/11 conspirators is
moving forward. As the Congress intended, the U.S. is in the
process of bringing those responsible for the attacks on the
World Trade Center and the Pentagon to justice. Congress should
exercise discretion.
While Boumediene did not reach the issue of military
commissions directly, it did raise a host of issues related to
the process required to detain an individual the military
believes to be a terrorist.
Moreover, the basis for which the court determined that
detainees in Guantanamo have a constitutional right raises
questions as to whether the court's rationale could extend to
other places where the military holds detainees, like Iraq and
Afghanistan.
I share Justice Scalia's concern that, absent congressional
action, the policy for handling enemy prisoners in this war
will ultimately lie with the branch that knows the least about
the national security concerns the subject entails. I believe
these are matters best left to political branches to decide.
So what policy matters are put into question by Boumediene
that should not be left to the court to decide? Attorney
General Mukasey's recent speech on the subject highlights six
critical areas that need congressional action.
First and most important, Congress should make clear that a
federal court may not order the government to bring enemy
combatants into the United States. Even under the current
system, we have released detainees that have resurfaced on the
battlefield and engaged in armed conflict.
I share Justice Scalia's concern that, post-Boumediene, the
number of enemy returned to combat will increase. And I remind
my colleagues that we have had a number of people who were
released from Guantanamo who showed up on the battlefield
again, attempting to kill American soldiers.
Second, it is imperative that the proceedings for these
enemy combatants be conducted in a way that protects how our
Nation gathers intelligence and what that intelligence is.
Attorney General Mukasey cites a terrorism case he presided
over when he sat on the federal bench where the government was
required by law to hand over to the defense a list of
unindicted co-conspirators. This list found its way through the
lawyers to Osama bin Laden in Khartoum.
Third, Congress should make clear that habeas proceedings
should not delay the military commission trials of detainees
charged with war crimes. Fortunately, one federal judge has
already ruled on this matter, deciding that the trial should go
forward, but this question is still at issue. The victims of
September 11th should not have to wait any longer to see those
who stand accused face trial. That is what he said.
Fourth, Congress should re-affirm that, for the duration of
the conflict, the United States may detain as enemy combatants
those who have engaged in hostilities or purposefully supported
al Qaeda, the Taliban, and associated organizations. Large
majorities of this Congress support supplemental spending bills
that pay for the war and allow for the continued fight against
al Qaeda, yet there are judges who question whether there is
still authorization to detain. We should put any doubt to rest.
Fifth, Congress should ensure that one district court takes
exclusive jurisdiction over these habeas cases and should
direct that common legal issues be decided by one judge in a
coordinated fashion. It is simply absurd to have the rules of
the game change from one detainee's case to the next.
Last, Congress should make clear that the detainees cannot
pursue other forms of litigation to challenge their detention.
Simply put, detainees should not have two bites at the apple.
Now that they will receive habeas review, there is no reason
for the D.C. circuit to review status determinations also.
At stake here is whether this Congress and this committee
in particular will allow the slow creep of lawfare to replace
warfare. Our men and women in uniform are trained in armed
conflict. The battlefield is not a place for a crime scene
investigative unit.
And I can recall, Mr. Chairman, when we had one of our
hearings on the proposed Detainee Treatment Act and we asked
one of our very experienced litigators, one of our lawyers, in-
service lawyers who understood the Uniform Code of Military
Justice (UCMJ), and a number of people were saying, ``Let us
apply the UCMJ to detainees on the battlefield.''
And we asked that particular attorney whether that would
mean that when a Marine squad saw a terrorist shoot at him on
the battlefield in Afghanistan, he would then have to give him
his Miranda rights, as he interrogated him at the Humvee. And
the answer was, in that lawyer's opinion, yes, he would have to
do that, leading to the question of whether we were going to be
able to assign lawyers to each squad of Marine combatants.
So I think this is an issue that we should look at very
clearly from the perspective of people on the battlefield.
As the attorney general recently argued, military personnel
should not be required to risk their lives to create the sort
of arrest reports and chain-of-custody reports that are used
under very different circumstances by ordinary law enforcement
officers in the United States. Battlefields are not an
environment where such reports can be generated without
substantial risk to American lives.
Finally, Mr. Chairman, it is the battlefield that this
committee needs to keep in mind here. We are the Armed Services
Committee. We protect members of the Armed Services and try to
make sure we have policies that allow them to execute their
very difficult mission with a modicum of safety.
My greatest concern, in light of this recent Supreme Court
decision, is its potential effect on operations in Iraq and
Afghanistan. We detain thousands of detainees in Iraq and
hundreds in Afghanistan. Detention is a fundamental component
of warfare. It keeps combatants off the battlefield and
provides actionable intelligence.
We can't hamper our warfighters by providing them with the
perilous choice of releasing detainees or complying with
process requirements of the criminal justice system that are
impossible to comply with on the battlefield.
In the past, I would have thought such a concern was
remote, bordering on paranoia. However, as we meet today,
detainees in Afghanistan have filed petitions for habeas relief
in U.S. courts.
As one editorialist recently pointed out, the Supreme Court
rejected the concept that court jurisdiction is limited to
sovereign American territory and could extend not just to
captives at Guantanamo, but all detainees abroad. And I think
this is simply untenable.
So, Mr. Chairman, thank you for holding this very important
hearing today. I look forward to the testimony of our
witnesses.
The Chairman. I thank the gentleman.
We are extremely fortunate to have the witnesses we have on
this panel. And we look forward to hearing from you. I hope I
don't mispronounce your name as I call on it, but let me try.
Stephen Oleskey, did I get it? All right. Get the----
Mr. Oleskey. Yes, you did, Mr. Chairman. Thank you.
The Chairman. Okay. With that, we will call on you first,
so we hope you will summarize your testimony. We on the
committee are governed, as you know, by the five-minute rule,
and we will proceed.
STATEMENT OF STEPHEN H. OLESKEY, PARTNER, WILMER CUTLER
PICKERING HALE AND DORR LLP, COUNSEL FOR THE GUANTANAMO
PRISONERS IN BOUMEDIENE V. BUSH
Mr. Oleskey. Thank you, Mr. Chairman, Ranking Member
Hunter, members of the committee.
I have been since July 2004 co-lead counsel in the case
which the Supreme Court decided on June 12th, Boumediene
against Bush. My clients, as the chairman mentioned, were
arrested at the behest of the United States in Bosnia in the
fall of 2001, despite the fact that the Bosnians had no
evidence----
The Chairman. Could you get just a little closer to the
microphone?
Mr. Oleskey [continuing]. Despite the fact that the
Bosnians had no evidence to arrest them, were investigated
thoroughly by the Bosnia system, with the cooperation of the
United States, and then ordered released in January 2002.
However, instead of being released, they were turned over
again at the demand of the United States to our forces there
and flown to Guantanamo, where they have been since January 20,
2002. So they are now completing six and a half years in
Guantanamo without charge or a hearing.
Our case was originally dismissed in January of 2002.
Another parallel case was ordered to go forward. Both cases
then went up through the appellate system. While that was
happening, this Congress--the previous Congresses passed first
the Detainee Treatment Act of 2005 and then the Military
Commissions Act of 2006, both of which you have referred to in
your opening remarks.
Then, in 2006, the Supreme Court held in the Hamdan case
that habeas had not been stripped or taken away by the Detainee
Treatment Act and habeas could go forward.
Thereafter, the Congress passed the Military Commissions
Act, which dealt both with military commissions and with the
status of habeas corpus for the detainees in Guantanamo who had
been characterized as enemy combatants. And that law appeared
to say on its face that there could be no habeas corpus rights
to be pursued by men designated as enemy combatants through the
military Combat Status Review Tribunal, or CSRT, a design which
was established in 2004.
Our clients and others then challenged that habeas-
stripping provision both in the circuit court and in the court
of the--and in the United States Supreme Court, resulting in
the Boumediene decision of June 12th.
That decision holds for the first time that Congress has
unlawfully suspended the writ of habeas corpus provided in
Article I, Clause 9 of the Constitution, because, in the
circumstances existing in Guantanamo, the court found that
habeas rights ran there and could be invoked by those
prisoners, a decision that was foreshadowed in the Rasul and
Hamdi decisions of 2004, also by the Supreme Court.
Now, the suspension clause states that the privilege of the
writ of habeas corpus may not be suspended, except when in
times of rebellion or invasion the public safety may require
it. That is bedrock. It is in the body of the Constitution. It
was so important to the Founders that they didn't wait for a
Bill of Rights. They put it as a limitation on the power of the
Executive and of the Congress right in the body of the
Constitution.
The Supreme Court then found in Boumediene that prisoners
could claim habeas corpus despite the fact that the Cuban
government retains legal sovereignty over the United States'
base there because the United States has had total control and
jurisdiction over that 45-mile enclave since the lease of 1903
under which we obtained the right in perpetuity to hold that
base as a military facility for the United States.
The Supreme Court also found that the prisoners' alien or
foreign status was not a part of their invoking habeas corpus
in the context of Guantanamo, in view of the Framers' intent in
enshrining habeas corpus in the body of the Constitution and
the Supreme Court's history of construing some fundamental
constitutional rights as applying outside the United States,
depending on particular facts and circumstances, that is a
history that goes back over 100 years.
Since there was no congressional finding in these cases of
rebellion or invasion, the Supreme Court concluded there was no
lawful basis for Congress to suspend habeas corpus for the
approximately 275 men remaining in Guantanamo.
Then the court examined whether the statutes that you
enacted, particularly the Detainee Treatment Act and the
habeas-stripping provision of the Military Commissions Act of
2006, together provide an adequate substitute or an acceptable
remedy for habeas, which it found had been stripped.
The court found that these congressional remedies were not
adequate substitutes because the underlying process in
Guantanamo, unlike a trial in federal court, a criminal trial
or another adversarial proceeding, was fundamentally not
adversarial. There was no evidence, no classified evidence made
available to anyone there to defend himself. No one had
lawyers. They had limited ability to call witnesses and offer
documents. And the government evidence was presumed valid.
The only review that Congress allowed of this was a limited
review, an administrative review, essentially, a record review
by the Court of Appeals in Washington, which could not make new
fact-finding, unless a federal habeas court, which could not go
beyond the record from Guantanamo, which was this extremely
non-adversarial record that resulted from a process created by
the Defense Department in 2004.
In effect, this Court of Appeals would be reviewing a
baked-in record with many procedural deficiencies that the
court found would not begin to provide anything approximating
fair or due process. For example, there would be no ability to
challenge the legal authorization for detention, which the
Administration has always asserted is found in the
Authorization for Use of Military Force resolution of Congress
in September of 2001.
There is no authority in the district court to order
conditional release of any prisoner found to be entitled to the
grant of habeas corpus. A federal district court can order a
conditional release. I say that release is conditional because
that is the word the Supreme Court used.
And what the court was saying was that, even if someone has
ordered release, it is still up to the political branches--in
this case, the Executive--to negotiate their return to the
country from which they were taken or to some other country
which is willing to take them.
And as the committee may be aware, there are a number of
men who the Defense Department itself has cleared, has said are
not enemy combatants or are no longer enemy combatants, who are
awaiting in Guantanamo for some country to be willing to take
them.
The United States has said properly that no one would be
sent back at this time to a country where they will be tortured
or mistreated, for example, the Chinese Uyghurs we are not
willing to return to China for that reason. So they are
actually being held, many of them, as cleared men, but with no
place to go.
So those are the deficiencies that the Supreme Court found
in the existing process and why it found that the circuit court
process for limited review that Congress enacted was not
sufficient in view of the constitutional entitlement of these
men to some fair process.
It is correct that the Supreme Court left various details
about how the habeas trials would be conducted to the federal
district court in Washington, right down the street in the
Prettyman Courthouse, but this result that experienced Article
III federal judges, sitting in the trial court, will now do
their jobs and conduct habeas trials is unremarkable and
scarcely a justification, let alone one rising to a necessity,
for additional congressional action with respect to habeas
corpus at this time.
Former Chief Judge Hogan is presiding over the bulk of
those cases which are before him on remand from the Supreme
Court in the short time since June 12th. He has had a number of
hearings, has had briefings, and has begun to issue orders.
The balance of the cases are before Judge Richard Leon,
including my case. He has also held a number of hearings, is
beginning to issue orders, and has stated publicly that he
intends to have all the cases before him, involving
approximately 25 prisoners, completely resolved and final
orders issued by the end of calendar 2008.
Both judges are consulting closely, they have assured us,
in meeting the Supreme Court's mandate to move these cases
expeditiously. These cases are heavily fact-intensive and, in
my view, would be difficult for Congress to weigh in on with
respect to habeas at this time because the facts and
circumstances are so different among the varying cases.
For example, as I mentioned, my clients were arrested not
on a battlefield, but in a friendly country, Bosnia, where they
were working, living with their families, and not with any
criminal record or any indication that they would be
terrorists. Other people were arrested in Africa, other places
in the world far from Afghanistan or Iraq.
Moreover, the enactment of both the DTA and the MCA with
respect to habeas has caused extensive delays already in
resolving these cases, as the court of appeals here in
Washington sought additional briefing and argument each time on
the significance of these acts to the pending appeals.
Therefore, the appeals took from early 2005 until the middle of
2007 to resolve at the Court of Appeals level and, obviously,
until June of 2008 to resolve at the Supreme Court level.
Given the recognition of Secretary Rice, Secretary Gates,
many others in the Congress and the Government of the great
damage done to U.S. prestige and reputation by our perceived
failure to give the 275 men in Guantanamo any fair hearing,
despite the passage of six and a half years, it would be my
suggestion that Congress stay its hand at this time with regard
to any further actions concerning habeas and let the
experienced federal trial judges down the street at the
Prettyman Courthouse do their job, which is at long last to
review the specific individual facts concerning these 6--these
remaining 275 men to determine which should be held and which
should be ordered conditionally released.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Oleskey can be found in the
Appendix on page 55.]
The Chairman. Thank you so much.
Now, you all correct me if I mispronounce your name.
Katyal.
Mr. Katyal. Perfect.
The Chairman. I got it?
Mr. Katyal. That is perfect.
The Chairman. Okay, please.
STATEMENT OF NEAL K. KATYAL, PAUL AND PATRICIA SAUNDERS
PROFESSOR OF NATIONAL SECURITY LAW, GEORGETOWN UNIVERSITY LAW
CENTER
Mr. Katyal. Thank you, Chairman Skelton, Representative
Hunter, and members of the committee.
The last time I was before your committee was in March of
last year. And as I was preparing for today, I was reminded of
your opening words, Chairman Skelton, at that hearing. You
said, ``Last year, when Congress passed the MCA, I argued that
the most important task was to design a system that could
withstand legal scrutiny. There are at least seven potential
constitutional defects.''
``First, it seems clear to me and many others that the act
may be unconstitutionally stripping the federal courts of
jurisdiction over habeas cases.''
Your opening statement, like the one you made today, went
on to list a number of infirmities, including violations of the
Geneva Conventions and equal protection, as ex post facto,
confrontation, and exceptions clause problems under our
Constitution.
And you concluded, ``Providing for expedited review by the
Supreme Court of these seven issues continues to be important.
If the justices find the Military Commission Act includes
constitutional infirmities, it is likely that known terrorists
could receive a get-out-of-jail-free card or have their death
sentences reversed.''
Chairman Skelton, what you said back in 2007 looks
prophetic now in 2008. We stand now with that very act
invalidated on the very grounds you mentioned: stripping habeas
corpus, a part of Anglo-American jurisprudence since the Magna
Carta of 1215.
Even before 2007, during those hasty Military Commission
Act debates of 2006, many warned the Administration that, if
they rushed to implement their proposed legislation, they would
accomplish very little because that legislation had
constitutional infirmities and courts would strike it down.
But the Administration's defenders reassured Congress that
the Constitution did not apply to Guantanamo and not to worry.
That legal advice was always dubious, and the Supreme Court put
an end to it.
In the Boumediene decision last month, the court stated
that political branches cannot switch the Constitution on and
off as they please. Our basic charter cannot be contracted away
like this, they said.
And so here we are again, nearly seven years after the
horrible 9/11 attacks, with only half of a single trial
completed at Guantanamo and the Military Commission Act already
struck down in part by our highest court.
Now some are proposing yet again another rushed proposal to
respond to the new court decision. The proposals are legion.
Some would create a national security court; others would
centralize litigation in a few judges; and still others would
try to overhaul the military commission process.
I support many of these proposals. I think the military
commissions created in 2006 are deficient and unlikely to
survive judicial scrutiny.
The act's foundational presumption in 2006 was that the
Constitution did not apply to Guantanamo and so the trials need
not have even basic rights guaranteed by the Constitution, such
as the right of a defendant not to have coerced testimony used
against him.
This system is going down, and it is right and proper for
this body to put commissions on hold as soon as possible to
develop appropriate, constitutionally balanced legislation.
I am also a believer, to the chagrin of some, in a national
security court to authorize a very limited preventative
detention system for individuals who truly are unable to be
tried in military or civilian court. I have been studying such
a court for well over a year now, and the one thing I can say
with certainty is that it is a very difficult undertaking.
Who will the judges be? Who will the defense lawyers be, if
any? How long will the detention periods last? Will there be
periodic review? What evidence is going to come in? Who will be
subject to the court's jurisdiction? Will there be appeals?
There are hundreds of different models from which to
choose. And yet each of them will differ from our traditional
system of justice.
Americans take pride in our criminal justice system. And
our system works best when we convict terrorists in it. We
showcase the rule of law and contrast it with the despicable
world of the enemy, who lacks respect for our way of life and
our values.
If we are to modify this system, we should do so cautiously
with appreciation for the risks involved. That is why, moving
forward, the most important line in Boumediene belonged not to
the majority, but to the dissent by Chief Justice John Roberts.
He said, ``After the court in 2004 gave Guantanamo
detainees habeas corpus rights, Congress responded 18 months
later and cannot be faulted for taking that time to consider
how best to accommodate both the detainees' interests and the
need to keep the American people safe,'' cannot be faulted for
taking that time.
The very worst time, it occurs to me, to contemplate such
changes is a few months before an election, particularly when
both Presidential candidates have announced that they will
close Guantanamo. A rush to judgment runs the risk of creating
slogans, not sustainability. That is exactly what happened in
2006 with the Military Commission Act.
We need a better plan than simply looking tough if we want
to demonstrate to our courts and to the world that we are
serious about terrorism. This country desperately needs and
deserves a serious inquiry, perhaps catalyzed by a bipartisan
national commission to examine whether a national security
court is necessary and, if so, what it should look like.
We have spent far too many years with intemperate solutions
that have gotten us nowhere. Many warned the Administration
that they needed a plan for the day after the Supreme Court's
highly predictable decision to restore basic habeas corpus
rights to detainees, but the Administration stubbornly clung to
notions of Executive power that the Supreme Court in Boumediene
eviscerated.
If we rush into legislation today, we will need yet another
plan for the next predictable day after.
Thank you.
[The prepared statement of Mr. Katyal can be found in the
Appendix on page 74.]
The Chairman. I thank the gentleman.
I think I can pronounce this next one. Mr. Klingler. Did I
get it? Okay.
STATEMENT OF RICHARD KLINGLER, PARTNER, SIDLEY AUSTIN LLP
Mr. Klingler. Mr. Chairman, Ranking Member Hunter, members
of the committee, I appreciate the----
The Chairman. Be sure and--you are going to have to get
real close to the microphone so that we will hear you.
Mr. Klingler. Sorry about that. Can you hear me now?
The Chairman. Yes, sir.
Mr. Klingler. I appreciate the opportunity to address you
today in my personal capacity regarding the important issues
raised by the U.S. Supreme Court's decision in Boumediene v.
Bush. I would like to emphasize a few points canvassed at
greater length in my written testimony.
Boumediene presents very significant issues that only
legislation can address effectively.
The Chairman. A little closer, please. Just speak right
into it.
Mr. Klingler. Better?
The Chairman. Yes, stay close to it.
Mr. Klingler. I will try to. Thank you.
Federal courts have traditionally deferred very
considerably to the executive branch and to Congress on
military matters. Detaining persons the military has found to
be enemy combatants is a central and legitimate component of
the war on terrorists.
As a unanimous Supreme Court indicated in a separate case
just last month, the Constitution requires that the judiciary
be as scrupulous not to interfere with legitimate Army matters
as the Army must be scrupulous not to intervene in judicial
matters.
Boumediene abandoned that tradition of deference. It opens
the door to an unprecedented era of judicial policymaking in
military matters. At the same time, the decision provided
almost no guidance to lower courts regarding the processes to
be used in the newly required proceedings, the detainees'
substantive rights, or the protections that must be afforded to
military and security interests.
The resulting problem is straightforward. In their new,
undefined role overseeing military functions, civilian judges
are likely to draw too directly on processes designed to
protect U.S. citizens in traditional criminal proceedings. They
are unlikely to appreciate how their decisions affect national
security policy or the conduct of military operations.
The principal problem created by the decision is not, I
believe, with the military commission trials. Assertions of
equal protection in international law difficulties are
considerably overstated on the merits and have already been
presented to federal courts and will be presented to them again
upon review of any convictions.
Some portray the issue as simply ensuring that the military
holds people at Guantanamo who actually threaten Americans. The
actual issue is far broader and more complex. The Boumediene
decision is not limited by its terms to Guantanamo and has
implications far beyond, including for Iraq and Afghanistan.
The resulting judicial proceedings will allow judges to
review the military's evidence supporting detention, but also
to decide when and how the military is empowered to detain
enemy combatants, as judges find and define them. They create
open-ended litigation regarding counterterrorist capabilities.
Particular issues extend to how to resolve overlapping
judicial processes, how to protect sensitive information, and
how to ensure that military resources aren't diverted from
their core tasks. And in the end, judges may make decisions for
reasons having nothing to do with the evidence of threat or may
make mistakes leading to the release of persons who do, in
fact, seek to kill American soldiers, civilians, and their
allies.
In these circumstances, Congress should fulfill the
political branch's constitutional role. Legislation would
create legal certainty and operational flexibility.
The executive branch, through the attorney general, has
requested legislation to protect military and security
interests, and the judiciary, through the chief judge of the
district court most burdened by the uncertainties of litigation
surrounding habeas petitions, has very unusually welcomed
guidance from Congress and indicated that ``such guidance
sooner rather than later would certainly be most helpful.''
More broadly, Congress has the opportunity to re-affirm the
principles underlying the military's actions against
terrorists. The nub of many of the judicial disputes is simply
that some members of the judiciary and the bar do not believe
that we are truly or appropriately at war against those who
would use terror against our soldiers and this Nation, or they
believe that time is--the threats we face to those we can
manage through criminal-like processes.
Assuming that Congress continues to support the military's
counterterrorism efforts, re-affirming and clarifying the
bounds of the Authorization for Use of Military Force (AUMF)
would update that authorization in light of our increased
knowledge of the foes we face.
It would remind the court to the commitment of two
coordinate branches to using all appropriate means to confront
pressing threats to our national security. Doing so may even
return the courts to a centuries-old tradition of deferring to
the political branches in matters of military and foreign
affairs.
Thank you.
[The prepared statement of Mr. Klingler can be found in the
Appendix on page 91.]
The Chairman. Colonel Davis.
STATEMENT OF COL. MORRIS D. DAVIS, USAF, FORMER CHIEF
PROSECUTOR, OFFICE OF MILITARY COMMISSIONS (2005-2007)
Colonel Davis. Thank you.
Chairman Skelton, Mr. Hunter, members of the committee,
thank you for allowing me to participate in the hearing today.
Much of what I have to say this morning is based upon my
two-plus years of experience as the chief prosecutor at
Guantanamo Bay, Cuba. However, I am here speaking in my
personal capacity, not on behalf of the Department of Defense
(DOD) or the Department of the Air Force. And I think you would
have figured that out in any event, but I wanted to make that
clear.
The Chairman. You are going to have to get closer, too,
just like everyone.
Colonel Davis. Yes, sir.
For more than two years, I spent time inside the camp. I
have sat down with some of the detainees. I have reviewed the
evidence, both classified and unclassified. I led the
prosecution for more than two years. In fact, the cases that
are being tried today, the Hamdan case, I personally authorized
and approved those charges.
So I hope my experience and my observations will contribute
to finding a credible way forward on how we deal with this
important issue that in many ways defines who we are.
I was privileged to serve for a quarter century as an Air
Force judge advocate and to participate in the military justice
system at almost every level and in a variety of different
capacities. For most of my career, the military justice system
operated in relative obscurity with little attention from the
media, the public, or even Congress.
Those of us who worked inside the military justice system
always knew what a good system it was, but until the post-9/11
era, when the military justice system gained some notoriety as
a basis of comparison for the processes we would use to
prosecute detainees, it was largely unknown and under-
appreciated.
I was pleased that during the debate over the Military
Commissions Act people from across the political and
ideological spectrum referred to military justice as the gold
standard of justice. Some of us knew that all along, but it was
nice to see it recognized on a broad scale.
The processes currently in place to deal with detainees,
particularly those at Guantanamo Bay, Cuba, are being sold to
the public as part of the ongoing war on terrorism. They are
included in Title 10 of the United States Code, the section on
Air Force, not Title 18. And they are supposedly wrapped under
the military justice banner.
In my view, what we are doing at Guantanamo Bay is neither
military nor justice, and if this reflects what passes for
military justice in 2008, I am glad my uniform is hanging in a
closet. This isn't the military justice system I respected and
admired for nearly 25 years.
Over the past several months, I have written a number of
articles, and given talks, and done interviews, and shared my
observations with special interest groups, nongovernmental
organizations (NGOs), think tanks, and some members of this
body.
The question of how we move forward to ensure the treatment
of detainees and to begin to restore our reputation in the eyes
of the world is an important issue. But with soaring gas
prices, plunging home values, rising foreclosures, a looming
record deficit, and wars in Iraq and Afghanistan, and all of
that taking place within 100 days of an election, this probably
isn't the number one issue on a lot of people's lists.
I understand that. As someone about to be unemployed and
with an interest-only adjustable-rate mortgage, it is probably
not number one on my list either, but it should be on
everybody's top 10 list.
It is an issue that warrants thoughtful consideration now.
And we shouldn't wait until after November 4th or January 20th
to begin having this discussion.
Now, I think the most beneficial use of our time today will
be in answering your questions, so I am going to keep my
comments relatively brief. However, there are a few points to
keep in mind in discussing detainees at Guantanamo Bay.
One thing I found in talking to different groups is
apparently I am in the middle of the road. I tend to get hit by
folks on either side. I tend to aggravate everybody because I
think my views are neither left nor right.
I think, first, it is important to recognize that there is
an internationally recognized right during a period of armed
conflict to indefinitely detain the enemy to keep him from
inflicting harm on us and on others. To the best of my
knowledge, there has never been and there never will be a date
certain that we know when an armed conflict is going to end.
Now, that is not to discount in any way the $64,000
question of how we assess who is or is not the enemy, but some
seem to argue and believe that unless we bring criminal charges
or release a detainee within some prescribed period of time,
that we have committed a foul. And that is just not the case.
Second, the intelligence community wants to know what is
going to happen in the future in order to prevent the next 9/
11. The law enforcement community wants to know what happened
in the past to punish those responsible for the last 9/11.
As you can see, the perspectives are in opposite
directions, one being prospective and one being retrospective.
Add to that that one agency operates in a very rigid and very
visible environment where the rules are well-known, things like
Miranda rights, speedy trial, chain of custody, search
warrants, and such.
The other operates in a very fluid and invisible
environment, where the rules are generally secret. When you try
to overlay the two communities, you get a lot of square peg and
round hole problems. And in a nutshell, that is Guantanamo Bay,
which began as an intelligence operation and largely is still
to this day an intelligence operation, with any thought of some
law enforcement or criminal prosecution process taking a back
seat at best.
Now, it is wonderful when those two conflicting communities
overlap and dovetail, but that is seldom the case, and that is
the real conundrum with Guantanamo Bay.
Lloyd Cutler was a giant in the legal community, having
served as White House counsel twice and as co-founder of one of
the most prestigious law firms in the world. In 1942, when he
was just beginning his career, he served as a prosecutor in the
trial of the eight Nazi saboteurs, which took place not too far
from where we are today, and which led to the Supreme Court
decision in Ex Parte Kiernan.
In December 2001, Mr. Cutler wrote an article in the Wall
Street Journal drawing on his experience from more than 60
years earlier. He said, ``How we prosecute the members of al
Qaeda and their supporters will say as much about the American
legal system as it does about al Qaeda.''
Now, Mr. Cutler passed away in 2005, and I doubt if he was
here today he would be pleased with what the past 80 months
have said about the American legal system. We are better than
that.
Military commissions apply to only some of the detainees,
certainly not the entirety. And my experience is pretty much
limited to the military commission cases.
Judge James Robertson, in his decision on July 18th denying
Salim Hamdan's request for an injunction in the military
commissions, said, ``The eyes of the world are on Guantanamo
Bay. Justice must be done there, and it must be seen to be done
there fairly and impartially.''
Now, I believe the current system may do justice in some
cases--perhaps in many cases--but we need a system that is
capable of doing justice in all cases.
There are, in my view, four main problems with the current
military justice process. And I would stop to say that I
believe that the Military Commissions Act was a commendable
piece of legislation. And I still believe that. It was the
implementation by political appointees after it had been passed
by Congress, signed by the President where it was hijacked
along the way.
The four areas are, one, if the military commission is
really a military commission, it should be under military
control and free of political interference. Now, proponents
argue that a commission is really, for all practical purposes,
just like a court martial.
Well, for a variety of reasons, the analogy to the court
martial system does not fit. And I will give you one example.
Since 9/11, the Army, the Navy, the Air Force, and the Marine
Corps have conducted in excess of 50,000 court martials. To the
best of my knowledge, each of those 50,000 court martials was
convened by a military officer, not by a political appointee.
So if the military commissions are just like a court
martial, why are these the only Title 10 criminal proceedings
convened by a political appointee who had never worn a military
uniform a day in her life?
Second, in the court martial system, the convening
authority and his or her senior attorney, what we refer to as
the staff judge advocate, has some oversight authority over the
prosecutors. And it is that level of command involvement in the
military justice system that is often cited as the greatest
weakness in the court martial process.
All of the international--all the comparable international
tribunals that are sanctioned by the United Nations (U.N.)
guarantee the independence of the prosecutors. Trying to
explain what a convening authority is, is a difficult
proposition, particularly to an international audience who is
accustomed to that international model where the prosecutors
are independent.
Now, I thought language that Senator Lindsey Graham added
to the Military Commissions Act at my request ensured that no
one could try to influence the exercise of professional
judgment by me or the prosecutors. And it aligned us more
closely with the international model that would be more
understandable to the international community, but it hadn't
stopped some from continuing to try to influence the process.
The military judge in the Hamdan case is Navy Captain Keith
Allred. And he ruled that the legal adviser to the convening
authority, Brigadier General Tom Hartmann, broke the law by
engaging in unlawful influence over me and the prosecution in
the Hamdan case. And he disqualified General Hartmann from any
further involvement in the Hamdan case.
Unlawful influence has been called the moral enemy of
military justice, so many waited to see how the Department of
Defense would respond to a finding that the legal adviser broke
the law.
What has happened since that finding that he broke the law
has been nine more detainees have been charged. The 9/11 cases
have been referred to trial. And General Hartmann is still in
place and pressing ahead at full speed.
Third, we have to make a commitment to open and transparent
trials. Some closed sessions are inevitable, but that should be
the exception and not the rule. I can tell you from firsthand
experience that the evidence declassification process is time-
consuming and is frustrating, but it is necessary if we are
going to have open trials.
You can have speed, but if you have speed it comes at the
expense of transparency. And as tainted as the process has
become in the eyes of the world, I believe it is imperative
that we take the time and the effort to make these trials as
open and transparent as possible.
In fact, I had often joked in the past that we should have
these proceedings on Court TV, and I still think that might be
a good idea.
Finally, we must reject the use of evidence obtained by
unduly coercive techniques such as waterboarding. Those
techniques may produce useful intelligence, but they do not
produce reliable evidence suitable for use in an American court
of justice. If we condone it now, we forfeit the right to
condemn it later when the shoe is on the other foot.
Information obtained by convincing a man to say what the
interrogator wants to hear or possibly die, which is really
what waterboarding is, or the same as putting a gun to
someone's head and saying, ``I am going to count to 10 and pull
the trigger if you don't talk,'' is what the person on the
other end believes.
It doesn't matter if the gun is empty and there is no
possibility of death or if the waterboarder is not going to
drown the individual. The person on the other end doesn't know
that, and he believes his choices are talk or possibly die.
That practice has no place in an American court of justice, and
it should be banned.
In a speech delivered in April at West Point, Secretary
Gates said, ``Listen to me very carefully. If as an officer you
don't tell blunt truths, then you have done yourself and the
institution a disservice.''
Later, in June at a speech he gave at Langley Air Force
Base, he said, ``None of the services easily accept honest
criticism or scrutiny that expose institutional shortcomings.
This is something I believe must change across the military.''
Secretary Gates went on to say, ``When you see failures or
problems, throw a flag. Bring them to the attention of people
who can do something about it.''
Mr. Chairman, members of the committee, I have thrown the
flag and I have told blunt truth. As a result, my service has
been characterized as dishonorable. I was denied a medal for my
service as chief prosecutor. And I find that the truth not only
sets you free; it also makes you largely unemployable.
And that is fine. To me, it would be a disservice if I
would put my head down, pressed ahead, and pretended everything
was fine when it was not, and I have no regrets about doing
what I did.
Thank you for allowing me to be here today.
[The prepared statement of Colonel Davis can be found in
the Appendix on page 102.]
The Chairman. We thank you for your testimony and for each
of you and your excellent words of wisdom and advice for us.
Colonel Davis, it is interesting to note your reference to
the 1942 case. Of personal interest, there was a World War I
soldier who stayed in the Army Reserve as a Judge Advocate
General (JAG) officer by the name of Colonel Carl Ristine from
my home town of Lexington, Missouri, and was quite a well-known
lawyer in western Missouri.
When the Second World War came along, he returned to active
duty and was the lawyer for one of the two--I think his name
was Dasch--who was not given the death penalty from the 1942
commission.
My recollection is that six of the eight German saboteurs-
to-be were given the death penalty, and that was carried out
immediately. Two were not, as my recollection. And Colonel Carl
Ristine represented the one.
And a footnote: He was my father's mentor when my father
graduated from law school. So it is really interesting that
today in your testimony you mentioned it.
Let me ask one question before I ask Mr. Hunter.
Mr. Oleskey, could you address the suggested points that
the attorney general made for or recommended for congressional
action in response to the Boumediene case?
Would you respond as to how--and I don't know if you have
the list of them there in front of you--would you respond as to
your thoughts on each of them--I think there are six of them--
please?
Mr. Oleskey. I don't have a list in front of me, Mr.
Chairman, but I am generally familiar with the attorney
general's suggestions.
The Chairman. Why don't you go ahead and tell us your
thoughts?
Mr. Oleskey. Absolutely. Essentially what he has suggested
is that Congress step in and tell the federal courts how to
conduct the habeas proceedings to decide what the burden of
proof should be, to decide how to deal with classified
evidence, and a lot of other issues that trial judges who hear
habeas cases every day, coming out of the federal and state
courts, normally do in reviewing and deciding habeas cases.
As I stated in my remarks, the problem with that one-size-
fits-all approach is that no one sitting in Congress or in any
advisory capacity over a habeas case is ever going to know
enough about the facts that are at issue in a particular case
because they are so varying and different and raise so many
issues, to be able to devise a protocol that will work.
So my view is that the federal courts have extensive
experience dealing with these issues that are now presented by
this ruling. It is only the ruling that is unusual, not the
issues that have to be explored, which is, what is the basis to
hold somebody indefinitely? What are their defenses? What are
the facts that bear on that decision to hold? And what are the
facts that bear on whether the person should be released?
These are, if not garden variety issues, very common issues
that federal habeas courts in every jurisdiction, represented
by every one of you in the country, deal with, if not every
day, then every week.
So what happened with the MCA and the DTA, as we have all
been saying in our various ways, were that some clarity was
brought to some aspects of these military commission and habeas
proceedings, but fundamentally we ended up with years of
appeals that were foretold by many of us and many of you,
resulting in delays from 2002, really, when the first case was
brought, until 2008, so six and a half years of appeals just to
get to the fundamental issue in each individual case of whether
someone should be held further or should be released.
Legislation, in my view, well-intentioned as it may be, is
not going to clarify those circumstances. It is going to
complexify and complicate those circumstances, delay the cases,
lead to general appeals that are likely again to hold up all
the cases.
And, in contrast, Judge Leon and Judge Hogan are now moving
these cases forward rapidly on schedules which they are very
easily able to handle and establish. And the cases are going to
be tried, it appears, in the relatively near future, certainly
in my case is in front of Judge Leon.
So I understand why the attorney general and the
Administration say that, Mr. Chairman. But I don't think that
the result will be anything that any of us will be proud of, as
Mr. Davis and Mr. Katyal were saying about what has happened in
the military commission area.
The Chairman. Thank you. I should have read the attorney
general's quick summary before asking you that question, Mr.
Oleskey, but let me do that very quickly and then I will ask
for brief comments from each of the other three panel members.
One, prohibit the federal court from ordering the
government to bring enemy combatants into the United States.
Two, adopt procedural safeguards to protect the sources and
methods of intelligence-gathering. Three, to ensure that habeas
proceedings do not delay military commission trials of
detainees charged with war crimes.
Four, acknowledge explicitly that this Nation remains
engaged in armed conflict with al Qaeda and the Taliban and
associated organizations and reaffirm that, for the duration of
the conflict against these groups, we may--the United States
may detain enemy combatants.
Fifth and last, establish the sensible procedures for
habeas challenges going forward by ensuring that the one
district court has exclusive jurisdiction over the proceedings.
And, excuse me, there is a sixth one. Limit the ability of
detainees to pursue other forms of litigation.
So that is--those are the six recommendations made by the
attorney general. Let me ask you if you have comments or
thoughts on them. We will go right down the line.
Mr. Oleskey. Let me just comment specifically, Mr.
Chairman, on those six points then.
The Chairman. Yes.
Mr. Oleskey. Release in the United States--the Supreme
Court was very clear, the law is clear that a habeas judge
can't release anywhere. He can order a conditional release in
this case or she can order a conditional release, subject to
the decision by the executive branch about how to return and
where to return the particular prisoner. So I think that is not
a real issue, as I see it.
In terms of classified evidence, Colonel Davis has referred
to how the military commissions handle that. There is a federal
statute that the Congress enacted, the Classified Information
Procedures Act (CIPA) statute, that provides procedures for
that. That has been done in every terrorist criminal trial I
can think of. I don't think more legislation is needed on that.
The ranking member commented on delaying the military
commissions as not being in anybody's interest. I think we all
agree with that. I can't see how further legislation at this
time with cases going forward would not delay those cases and
result in appeals. Others may differ.
The President's right to detain enemy combatants is
something spelled out in the Authorization for Use of Military
Force resolution of the Congress on September 18, 2001. That is
in the process of being worked out. As to what it means as to
each detainee on a case-by-case basis, that is what has to
happen.
Each detainee has a different story, a different set of
facts, and the government's right to detain them further will
turn on where they fit in the scheme that you all outlined in
general in that resolution. I don't believe that that needs
further clarification at this time.
Consolidation of cases, the Supreme Court said they should
all be heard essentially in one court. They are all being heard
in the district court right down the street, as I said, and
they are all being consolidated for preliminary purposes before
two judges who are ruling on all the general and common issues
that are likely to arise.
And then, as to multiple avenues for litigation, you all
decided in 2005 and 2006 to allow a process for review of the
Combatant Status Review Tribunals (CSRT). Most of us went
forward and filed both habeas actions, which were doubtful
until the Supreme Court ruled in June, and DTA cases. Most of
us will probably pursue habeas cases for the reasons I stated
in my opening remarks.
There is no showing that anyone has abused the second
avenue, the DTA avenue. There are lots of statutes that allow
more than one claim and sometimes in more than one court. This
is more a theoretical concern right now than a real concern, as
I see it.
The Chairman. Thank you.
Mr. Katyal, your comments?
Mr. Katyal. I support the idea of legislation in general.
Our Founders in Article I, Section 8 gave this body, the
Congress, the prerogative over legislation in this area.
And I do think legislation is inevitable at some point, for
reasons that I think Representative Hunter illustrated and also
things that Justice Jackson said earlier in his famous
Youngstown opinion, that legislation will put the program on
more stable footing and produce a program that is more
sustainable in courts and in the world's community.
However, having said that, this does not seem right now to
be the appropriate time for legislation for a couple of
reasons. One is, we don't have any experience yet with how the
federal courts are going to handle this.
I think we should let the system play out a little bit, as
Mr. Oleskey said, see how the federal courts are dealing with
this. There is a system in place by very experienced judges.
There isn't some overwhelming need right now to act. And then
this body can be informed by that legislative--by that judicial
experience.
In addition, I am very worried about a rush to judgment in
this area. We did that in 2006. Some people warned Congress
that, if you do so, if the program is not going to be
sustainable, it is going to be struck down, that is exactly
what happened. And so I think, before acting again, we need to
do this very carefully, with all the relevant information.
Let me speak to one aspect of Attorney General Mukasey's
comments, his third one, about clarifying the writ of habeas
corpus should not delay military commission trials. I think
that is a very dangerous idea.
These military commissions are unprecedented. We have never
had trials like this before in America. And I think anyone who
listened to Colonel Davis' remarks a moment ago will understand
just how different these trials are.
The worst time to review the legality of these trials is
after they have taken place. There are a lot of constitutional
problems with the military commissions going on.
And if, as I suspect, courts will invalidate that system
down the road, you do run the prospect, as Chairman Skelton
said last year, of terrorists going free or possibly having to
be re-tried. That is a terrible way of meting out justice.
Instead, we should do what Representative Skelton proposed
before, which is expedite review over the military commission
process. Let us make sure that system is legal, as its
defenders say it is. If it is legal, let us have the trials.
Let us have them go forward. If it is not, then let us have a
new system come in and take place.
I am very sympathetic to what Ranking Member Hunter said a
moment ago, that the victims of 9/11 should not have to wait
any longer for trials. Let us have real trials. Let us make
sure they are on a stable footing and then have them, instead
of have them be invalidated years after the fact.
The Chairman. Thank you.
Mr. Klingler was next on the list, and then Colonel.
Go ahead, Mr. Klingler.
Mr. Klingler. Thank you.
If I could just address your question by picking up some of
the comments that have been made, the notion that there are
only garden-variety issues before the habeas courts I think is
just a fantasy. The notion that there won't be years of appeals
I think has no basis at all.
The chief judge of the district has welcomed quick
congressional guidance. Judge Hogan isn't processing cases;
what Judge Hogan has done is request briefing, very extensive
briefing from the government and from detainees' lawyers, on a
whole range of open issues.
What types of discovery must there be? How much classified
and intelligence information does the government have to offer
up? What standard? Is it clear and convincing? Is it some
traditional standard regarding the government's showing that is
required?
What type of presumption, if any, does the government get?
What kind of hearsay can be offered? What kind of witnesses can
be pulled forth? Do they get to be called from Iraq and
Afghanistan? Can the detainees personally participate? Are they
going to be able to call other detainees as witnesses?
All these are open, common issues that are being briefed
right now. It is not as though the cases are being presented in
the initial form.
As to some of the particular issues, I mean, I have covered
those in some of the written testimony. I would just address
two briefly.
The release in the United States point, I was initially
somewhat less sympathetic to that point than to the others of
the attorney general's. And then I found out that, in fact,
some of the detainees'--one of the detainee's lawyers has, in
fact, requested release in the United States, in the case of
Parhat, was my understanding.
As to the timing of the military commission trials versus
habeas proceedings, I think the notion of final resolution,
either through legislation or through court processes of the
lawfulness of the military commission process, before we have
even seen how they perform, before we have seen how the judges
and how the appeal process works, that is going to be a
tremendous range of delay.
Legislation would take time to finally resolve any
differences. And certainly the course that Professor Katyal
would have of going into federal court and habeas proceedings
to disrupt and delay the military commission trials is one that
would just initiate a longstanding judicial process.
And I think the judge who heard those arguments already
that the professor has put forth didn't reject them on their
merits, but appropriately abstained, pending the operation of
the military trial process.
Thank you.
The Chairman. Thank you very much.
Colonel.
Colonel Davis. I guess two points. One is--my personal
opinion is I think the Boumediene decision was wrongly decided.
Of course, you know, it is the court's opinion that counts and
not my own. My personal opinion is a foreign terrorist whose
only connection to the Constitution is destroying it has no
constitutional rights. The court disagreed, and it is their
opinion that counts.
So I disagree with the rationale, but if the result is that
it gets folks to pay attention to the issue, then I can live
with the rationale, if it gets a good result.
My read of the Boumediene decision is what the court was--I
think the court was very deferential to the executive branch.
If you recall initially when Boumediene was filed, the court
refused to hear it. Then, Colonel Steve Abraham came forward,
who had sat on some of the CSRT proceedings and identified some
defects, where in some cases the evidence was flimsy, and
others, if the results wasn't what the leadership wanted, they
just re-did it until they got the right result.
And then, amazingly, the only time in my lifetime the court
reconsidered and agreed to hear the Boumediene case, which to
me--and then the decision itself--is an expression of a lack of
confidence in the executive branch to do it right, that folks
have a right to some meaningful review before they are locked
up for in excess of 80 months.
And I think the attorney general's comments were somewhat
disingenuous, to kind of throw down the gauntlet and say
Congress has got to fix this in the next couple of months, when
the Administration has had 80 months since the President signed
the order in November of 2001 to get this right. And they
haven't gotten it right.
It was frustrating over a year ago, when the court granted
a review in Boumediene--about that same time, we had two cases
down at Guantanamo (Gitmo), Qatar and Hamdan, where the judges
in those cases dismissed charges for lack of jurisdiction
because there was a disconnect in the wording--the
jurisdictional language of the Military Commissions Act said we
have jurisdiction over unlawful enemy combatants.
The regulation for the CSRT process requires that tribunal
to make a finding the individual is an enemy combatant, but not
an unlawful enemy combatant. So we had a disconnect in the
language.
There were a number of us that proposed, since we had two
problems--you had Boumediene, which was being heard by the
Supreme Court. We had us thrown out of court out of the
military commissions because of the defect in the
jurisdictional language. Why not fix the CSRTs and do them
right, which hopefully would allay the concerns of the Supreme
Court and also fix the jurisdictional problem?
But as tended to be the case quite often, there were a few
people that--what I have described many times. I think it was a
combination of arrogance and ignorance, that they knew the
right way to do it and they didn't need any assistance with
doing it right, so rather than fix the CSRTs, here we are, more
than a year later, you know, with this mess, and the attorney
general suggesting that you have got to fix it the next couple
of months. And I think that is wrong.
The Chairman. Colonel, thank you.
Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman, again. And, gentlemen,
thank you for your testimony.
You know, again, I am looking at this bundle of rights that
we went over, Senate and the House, when we put together the
Detainee Treatment Act and the Military Commission Act, right
to counsel, presumption of innocence, proof beyond a reasonable
doubt, opportunity to obtain witnesses and other evidence,
right to discovery, exculpatory evidence provided to defense
counsel, statements obtained through torture are excluded.
The classified evidence, I remember the exercise we went
through, the difficulty of making sure that you maintain the
secrecy of evidence, which nonetheless the accused has a right
to confront, and we finally went through this exercise of
redaction that would be utilized to try to make sure that they
were given the fairest shot possible at being able to confront
the evidence that was used against them.
That went through a lot of iterations and a lot of analysis
by counsel in the House and the Senate as we put this thing
together. I am looking at the statements obtained through
coercion are only admissible if the military judge rules that
the statement is reliable and probative.
Because most of these people come, while some of them--not
all of them come from the battlefield situation, most of them
do--the situation in which many of these statements are made is
inherently coercive. And we had a--we obviously had to work our
way through that.
Certified impartial judge, we went to the--the question we
were concerned about as to whether a--if you had military
officers on the tribunal, whether you would have a vote for
guilty by a junior officer on the basis that his superiors were
watching him and were on the body with him. So we provided for
the secret ballot. We did things that went far beyond what I
saw as a standard of Nuremberg, Rwanda, and other councils.
So my first question would be is, have you looked at this
bundle of rights that we gave to the accused in the MCA? And
what additional rights would you give to them?
Mr. Katyal. Thank you very much, Ranking Member Hunter.
I have looked at them. And they are the same rights largely
as what the Administration said the last military commission
system had in 2006. When I argued the Hamdan case before the
Supreme Court, the solicitor general's brief listed the very
rights you said, the right to counsel, presumption of
innocence, opportunity to get evidence, right to discovery, the
use of torture being excluded, the impartial judge, and so on,
the provision of a defense counsel, and so on.
That was all at page two of their brief and what the
solicitor general opened his argument to the Supreme Court
with.
It wasn't enough. And it wasn't enough for one simple
reason: It is not about the rights on paper. It is about,
rather, what the system--its ultimate backdrop is.
In both 2006 and now, there has been assumption that the
Constitution does not protect the detainees at Guantanamo Bay
and, because of that, these rights, while there on paper, wind
up not being very much in practice.
And that is what I think Colonel Davis was getting at when
he said that the military justice system that he knows is the
gold standard of justice and what is happening at Guantanamo
Bay is neither military nor justice.
I mean, this is a remarkable thing. We have been
adversaries for two years on the very same case, the chief
prosecutor and one of the defense attorneys, and yet I think
you are hearing some agreement from the people who have
experience in the system in telling you that the rights on
paper aren't the rights that translate in practice.
Mr. Hunter. Yes, but, counsel, what we have the power to do
here is to write the law with the expectation it is going to be
followed. Now, obviously, if those rights are not allowed, then
that is reversible error and is something that can be
corrected.
But the point is--my question to you is, when we put this
thing together, we looked at terrorist tribunals, and we looked
at Nuremberg, and we looked at Rwanda, and we looked at these
other tribunals. And we gave a larger package of rights, it
appears to me--for example, in Nuremberg, I believe you only
had one layer of appeal. Here you have got three layers of
appeal.
We gave a larger package of rights than these previous
terrorist councils. So my question to you is, in what we have
laid out in the law--because that is what we are dealing with.
You have got a trial going forward right now and you have got
20--as I understand--some 20 commissions gearing up to go, they
are going to go with what I just laid out and what you just
acknowledged are, in fact, this bundle of rights.
So my question to you is, do you think that additional
rights--do you think that these are inadequate and there are
additional rights that should be in the commissions law?
Mr. Katyal. Sir, we could have a debate about Nuremberg or
Rwanda or the other tribunals. I certainly think that, for
example, none of the other tribunals have such broad
substantive offenses, such as conspiracy. That is something
that Nuremberg rejected, yet it is being used in most of those
20 cases today.
But my fundamental point, Ranking Member Hunter, is that we
don't live in Rwanda and we don't live in Nuremberg. We live in
the United States of America. And in the United States of
America, we are governed by the United States Constitution.
And the United States Constitution sets out some--sets out
a backdrop from which----
Mr. Hunter. And conceding that we don't live there, that is
why my question to you was, are there additional rights beyond
this package of rights that we put in legislation that you
think should be in the MCA? Very basic. What additional do you
think we should give to the accused?
Mr. Katyal. The rights guaranteed by the Constitution writ
large. That is, it is not the micro-rights that you are
pointing to. It is the bigger right that says that all of
these--you know, that these problems are constitutionally
based. They are not just statutorily based.
Without that fundamental backdrop of understanding that the
Constitution constrains what is going on at Guantanamo, the
rights can be chipped away at on either side. And that is what
I think the Supreme Court was getting at in 2006, that it is
not the rights on paper, but----
Mr. Hunter. Okay, but when we write a law, the law is
always on paper, and we presume that the law will be followed.
And if the law is not followed, that is reversible error.
My next--so let me ask the other gentlemen, do you see--are
there other substantive rights--and, incidentally, I wouldn't
refer to the right to counsel and the presumption of innocence
as trivial or somehow technical rights. Those are very
fundamental rights.
Do the other counsel have any additional rights that you
would add to this package? And let me go left to right here,
sir.
Mr. Oleskey. Ranking Member, I don't have any clients,
fortunately, in front of military commissions, so I haven't--I
really am not here today to testify on that subject. And I
would defer it to Colonel Davis.
Mr. Hunter. Okay. If you could look for the record, if you
could look through the MCA, as we put it together, and see if
there are additional rights that you would recommend, I would
like to see those for the record, if you could do it.
Yes, sir, Colonel.
Colonel Davis. No, I don't think so. As I said--and I
think, you know, we have a disagreement. My personal opinion is
they don't have constitutional rights. They have rights under
Article 3 of the Geneva Convention, as expounded upon in--I
think it is Article 75 of the Additional Protocol, which to me
lays out their fundamental rights, which are covered in the
Military Commissions Act.
Mr. Hunter. Okay.
Mr. Klingler, do you see any additional rights beyond this
package of 15 rights that I have enumerated that you think the
accused should have?
Mr. Klingler. Look, Boumediene simply didn't hold that the
Constitution extends all rights contained in the Constitution
to Guantanamo detainees. I think that that is a
mischaracterization of the decision, and I think they are
contrary court decisions.
I think the short answer to your question is that the only
point that Boumediene called into question is potentially the
exclusive direct review in the federal courts and the
preclusion of habeas rights after there is any conviction that
takes place.
Mr. Hunter. Okay, let me go to the habeas rights. We had
the case--it was after World War II--in which an appeal was
made to the Supreme Court or a request for habeas was made,
presumably by one of the criminal accused of World War II. It
was the Eisentrager case.
And the Supreme Court was requested to give habeas, but
they were imprisoned outside of the United States. And the
decision by the court was they didn't have a right to ask for
habeas.
Now, as I understand, both the Supreme Court ruled, both in
Rasul v. Bush and on the instant case, Boumediene, that the
holding in Eisentrager didn't apply to Gitmo, to Guantanamo.
So here is my question. You have all described to some
degree--or at least several of you have described habeas as
rising from basic American values. And I think that the
chairman laid that out in his opening statement.
But the court in Eisentrager said, ``Wait a minute. If you
are making this thing, you are a detainee and presumably in
Germany, you don't have the right.'' And the recent court said,
``We still agree with that. If you weren't in Gitmo, we
wouldn't give you that right.''
So my question to you is, do you think that the detainees
in Iraq and Afghanistan--because when we talked about
Guantanamo, we talked about control. We said, ``Wait a minute.
Maybe Guantanamo is not a state, but it is definitely under
American control. It is an extension of American control.''
That same argument could be made with respect to people that
are under the supervision of a Marine sergeant in Afghanistan
or Iraq.
So my question to all four of you is, do you think that
habeas should be applicable to detainees that are held in other
parts of the world, and specifically Iraq and Afghanistan? I
will just go from left to right. What do you think?
Mr. Oleskey. I think the court was proceeding cautiously on
that question, as I read the decision. What they were saying
was that what you have in Guantanamo is not only a place under
total United States control and dominion; you also have people
who have been held without any approximation of process for six
and a half years.
And it is that, the latter point, that seemed to me to be
the driver for the court that we had held people for so long in
such a place, said we had a process--what we are referring to
as the CSRT process--given limited review of that limited
process, and that wasn't enough in those particular
circumstances to hold people for that length of time----
Mr. Hunter. But don't you think that same circumstance
could take place in Iraq or Afghanistan, that people would be
held for a long period of time, you could make that argument?
Mr. Oleskey. I imagine that that could happen and that
people will make that argument.
Mr. Hunter. So do you see----
Mr. Oleskey. And the courts will deal with it when it comes
along.
Mr. Hunter. Okay. But in your opinion, should habeas be
afforded to detainees under American control in Iraq or
Afghanistan?
Mr. Oleskey. If they meet those circumstances as found in
Boumediene. That would be a fact-intensive question arising in
those cases. How long has the person been held? Is he a
prisoner of war or enemy combatant? Has he had a CSRT? How long
before did the CSRT take place?
As was just said in answer to other questions, has the CSRT
process been revised to make it more fair and adversarial?
Those would all be fact----
Mr. Hunter. Okay. So in some cases, it might be yes; in
other cases, no.
Mr. Oleskey. That would be my view.
Mr. Hunter. Okay.
Sir.
Mr. Katyal. I would agree with the way you had
characterized it and believe that the Supreme Court's decisions
are clear that there is no habeas corpus rights in Iraq or
Afghanistan.
Guantanamo, the court has said, is different because no
other law applies. There isn't a law of Iraq or Afghanistan to
protect the detainees. There is only United States law. We
don't recognize Cuban law as having any force at Guantanamo.
Mr. Hunter. Okay, but you wouldn't--so you would not--you
do not believe that habeas attaches to detainees in Iraq or
Afghanistan?
Mr. Katyal. I do not. We do not have total control over
those areas.
Mr. Hunter. Okay. Okay.
Colonel.
Colonel Davis. I don't think it applies at Guantanamo, so
certainly not Iraq or Afghanistan.
Mr. Hunter. Okay.
Mr. Klingler.
Mr. Klingler. I don't. I think that that would be just a
gross distortion of the history of the writ and the purposes
for which it is used, if it were implemented in the battlefield
areas, particularly, or anywhere, frankly.
Mr. Hunter. Okay.
Mr. Klingler. But if I could, just one--I think
Boumediene--that is the best reading of Boumediene, as well.
However, it is clear that Boumediene's open-ended test created
the opportunity for counsel--and we heard it at the end of the
table--to argue that, in fact, the writ does extend.
And as you said, a case has--a petition has been filed in
relation to that. There is going to be litigation over this and
uncertainty for some time.
Mr. Hunter. Okay.
The Miranda rights, the right to--because you have talked,
gentlemen, about the need to not undertake--to not accept
testimony as been coerced. And by its very nature, the
battlefield is coercive.
And the safeguard that was imposed in our domestic system
was to give Miranda rights so that people were told, they were
instructed that they didn't have to talk, so when they saw that
police dog and they saw that snub-nosed .38 or .45 that the
officer had, that wouldn't coerce them into saying something
that they wish they hadn't said later. So we had--we inserted
that safeguard.
Do you think that, on the battlefield, that enemy
combatants should have the right to be Mirandized, to be given
the Miranda warning, so that they are not later in a court in
which they feel that they are being prosecuted with coerced
statements?
Left to right, what do you think?
Mr. Oleskey. I don't think the Supreme Court was saying
that. I think the court----
Mr. Hunter. I am not asking what the Supreme Court said. I
am asking--I mean, they made a statement on a limited area. I
am asking for your expert opinion or your feeling as to whether
that is a right that should be afforded to enemy combatants to
ensure that they don't make coerced statements, that is, to
make sure that they are advised on the battlefield upon being
apprehended that they do not have to speak and that what they
say will be used against them? Do you think they should have
that right?
Mr. Oleskey. I wouldn't advocate for that, Representative
Hunter. I think that is not practical on the battlefield. And I
do have to make my touchstone----
Mr. Hunter. Well, okay. But let me hold off for a second
then. If that is so--or maybe I should ask the next gentleman,
because you said coerced statements should not be utilized----
Mr. Oleskey. But he and I are talking about the situations
that we are all familiar with, where people are taken into
imprisonment, sent to Guantanamo, or sent to some other place,
and then tortured and mistreated. And that has been basic in
our law for 75 years that that kind of a statement, post-
apprehension, after you have been detained and seized and held,
doesn't produce reliable evidence and so it shouldn't be
admitted.
Mr. Hunter. Well, that may be so, counsel, but any good
lawyer is not going to differentiate between the treatment on
the battlefield, where he may make his most damning statements
in which he is surrounded by people with weapons, which he will
allege later were pointed right at him, when they took those
statements, extracted those statements from him.
That is why we have--that is why Miranda is always given
early on. It is not given later on in the--when you are in the
incarceration, when you are in jail or in prison. It is a given
right at the point when you are suspected of criminal activity.
And that was done for a reason, and that is so that you would
know that you didn't have to make the statements.
So my question is, because our counsel advised us or one of
our witnesses advised us at one hearing that, if you had
followed the UCMJ, which was advocated by some Members of
Congress, a Miranda warning would be necessary on the
battlefield.
So my question is, to prevent coercive statements being
taken, do you think that Miranda should be followed?
Mr. Katyal. Sir, I am not sure who that witness was that
you are referring to, and I obviously have respect for any
witness----
Mr. Hunter. One of our JAG witnesses.
Mr. Katyal [continuing]. But my understanding is that there
is no way that Miranda rights will apply to people on the
battlefield, captured on the battlefield, right at that
battlefield situation.
And the reason is that our Nation's highest military court,
the Court of Appeals for the Armed Forces in 1992, decided a
case--I think it is called United States v. Lonetree. And what
Lonetree says is that when someone is even being interrogated
and that the interrogation is motivated by intelligence, then
there is no need to read Miranda rights.
So it is an even broader exception in our current military
system than the one you are positing about Miranda being read
to people on the battlefield. So I think that would take care
of your worry, the existing military law.
Mr. Hunter. But I think you may be wrong, because Lonetree,
I believe, was an espionage case with respect to embassy
activity. And I think that clearly the presence on the
battlefield, the inherent coercive situation on the
battlefield, lots of people with weapons, at least I would
think most lawyers would use that as proof of a coercive
environment----
Mr. Katyal. Sir, it is----
Mr. Hunter [continuing]. When statements were made. So you
might be right that Lonetree will be brought up, but I think it
might be difficult to make Lonetree----
Mr. Katyal. The battlefield is undoubtedly coercive. And
that aspect was--Lonetree. But Lonetree says that is not what
is relevant. It is the purpose underlying the interrogation.
And the purpose, I think, would be the same. I don't see any
good defense lawyer winning this argument. Sorry.
Mr. Hunter. Okay. But in your estimation, Miranda should
not be a part--should not be extended?
Mr. Katyal. That is correct.
Mr. Hunter. Okay.
Sir, Colonel, what do you think?
Colonel Davis. Well, first off, you know, the witness that
was referred to that was asked the question--I think the person
you described in your opening statement as a very experienced
military prosecutor, that was me. I was sitting in the back row
at the hearing that you were the chairman of, and the issue
came up----
Mr. Hunter. That was you. That is right. We said, if you
took the guy who shot at you with an AK-47, because we had a
number of members saying, ``Why can't we use UCMJ?'' And I
asked you the question, would you have to Mirandize them? If
you used the UCMJ, if you applied it, and you said, yes, you
would.
Colonel Davis. Right. And I believe it----
Mr. Hunter. Right?
Colonel Davis [continuing]. Was Professor Michael Sharaf
was the witness. And he said he wasn't an expert on military
law, but the guy in the back row----
Mr. Hunter. And I referred to you as some JAG guy.
Colonel Davis. That was me.
Mr. Katyal. That was you? Okay.
Colonel Davis. But literally--if you applied the UCMJ
literally--and it is not Miranda. It would be Article 31 of the
UCMJ, which is comparable to Miranda. But if you read it
literally in the scenario you described, I think--my
recollection was you described they put him across the hood of
the Jeep and want to ask him some questions.
Literally, yes, that would require an Article 31 rights
warning if you literally applied the UCMJ. But, again, as I
said, I don't think constitutional rights apply.
Mr. Hunter. Okay. Okay.
And, sir, very quickly--and I apologize to my colleagues
for taking as much time as I have. Go right ahead, sir, and
then we will move--I will wrap up here.
Mr. Klingler. I don't believe Miranda rights are required.
I don't believe the full range of constitutional rights extend
extraterritorially to people who aren't U.S. citizens or who
don't have ties to the United States that are substantial.
Mr. Hunter. Okay. Thank you.
Thank you, Mr. Chairman.
And thank you, gentlemen.
Mr. Spratt [presiding]. Thank you, Mr. Hunter.
Mr. Oleskey, I believe you are representing two petitioners
at this point in time?
Mr. Oleskey. Six, Representative Spratt.
Mr. Spratt. Six? And six different procedures, six
different cases?
Mr. Oleskey. It is one case, because they were all arrested
together in Bosnia, but, in effect, there are six separate
cases within that one petition, yes.
Mr. Spratt. And we have a request from the attorney general
to the effect that Congress needs to intercede relating back to
the finding, amongst other things, that the executive branch
can't do this unilaterally on its own, it requires out working
together in a lawmaking capacity to create something like this.
You seem to say, however, that the courts can do it, that
there is sufficient law, sufficient known procedures,
sufficient precedent for the courts to proceed, and that is
what is happening in the cases you are conducting--where you
are representing petitioners at the present time?
Mr. Oleskey. Yes, sir.
Mr. Spratt. And you are saying that Judge Leon, is it, and
Judge Hogan are blazing this path as we go along and haven't
encountered any problems that require congressional
intercession?
Mr. Oleskey. That would be the way I read what they have
done. And I have been following both their proceedings
carefully. They are consolidating all the cases, either
between--either with Judge Hogan or Judge Leon, working out, as
Mr. Klingler said, the common issues--and there are many common
issues--and then coming to decisions on those common issues
that will allow the cases to proceed, to be heard as a trial in
a habeas court.
Mr. Spratt. What kind of evidentiary hearing do you think
that will be, in this particular case?
Mr. Oleskey. Well, that is still to be worked out, but it
seems clear from what the Supreme Court said that, unlike what
would have happened under the Detainee Treatment Act, where the
circuit court of appeals could only review the CSRT record
frozen in time, no matter what new evidence you had to present
that might exonerate your client, that there was likely to be
fact-finding by the district court judges based on evidence
that will be offered that could tend to exonerate your client,
either to show that the wrong person has been held or that
there is no authority to hold that person in the case of my
clients, because they weren't in Afghanistan, they weren't
connected to 9/11, they had nothing to do with al Qaeda.
Those would be the kinds of facts, I think, that will be
heard in these cases.
Mr. Spratt. How does the court propose to handle coerced
testimony? Is there----
Mr. Oleskey. There is no decision on that yet, but I would
expect----
Mr. Spratt. Have you made motions to eliminate, to----
Mr. Oleskey. Not yet, because we don't know what the
government is going to say. I think you need to understand
that, about three weeks ago, the government suddenly said to
all of us in the habeas cases that, instead of relying on the
records they filed from the CSRTs in 2004, they now want to
amend all those records and add new claims against virtually
everyone who is still at Guantanamo.
So we don't know, as I sit here, what the claims will be
against any particular person today, as opposed to the claims
that were made in the CSRTs, which led to the findings four
years ago that they were enemy combatants. It is a very odd
situation to be in and rather unfortunate, but the government
seems inclined to try that. And we will see whether the judges
allow it.
Mr. Spratt. Now, if Congress decided that it needed to
intercede to find coerced testimony, classified evidence,
confrontational witnesses, to go back and revisit some of the
law we have passed in light of the Supreme Court decision,
would this delay the trial that you are now in the--the case
that you are now conducting?
Mr. Oleskey. It certainly would delay our case because our
judge has said that he intends to try every case in front of
him by December 30 and that our case is the lead case. So we
expect, based on what he said, that our case will be tried in
October.
It would seem unlikely, as I sit here, that this
legislation that we are talking about hypothetically could work
its way through all the committee process, and the thoughtful
hearings that people would want to give it, and be out in time
to be useful in our case.
And I believe that would be true of other cases, as well.
That would be likely to advance rapidly, in view of the Supreme
Court's directive.
Mr. Spratt. And your clients don't appear to have been
known combatants engaged in an ongoing conflict or--I don't
know if it is the allegation of association with al Qaeda, the
Taliban, or anything of that nature. They appear to have been
suspects of some kind of incipient terrorist activity.
If they are acquitted or if the court cannot find
satisfactory evidence to continue holding them, what is their
status?
Mr. Oleskey. Their status would be that the court could
order them conditionally released, in the words of the Supreme
Court, subject to the executive negotiating with, in their
case, in the first instance, Bosnia, for their return to Bosnia
under terms and conditions satisfactory to Bosnia and to the
United States.
That is what has been happening for the hundreds of men who
have already been released. Our government has been negotiating
with Afghanistan, Pakistan, Saudi Arabia, Kuwait and other
countries, and that is how these men have been released, not
because of anything the courts have done, but because the
Executive has decided it is right and appropriate to release
those men for whatever reasons.
And the lawyers who are testifying before you haven't been
a part of that process. That has all been done by the executive
branch. And that is how the releases of anybody cleared in
habeas would have to be accomplished, as far as I can
determine.
Mr. Spratt. Professor Katyal, you seem to be recognizing
the need for more structure, and you expressed concern that if
Congress doesn't act and create better structure that the whole
process is likely to come unraveled in different courts, and
different rulings, and different decisions?
Mr. Katyal. I do. I think that this is an unprecedented
system that is going on at Guantanamo. And if our desire is to
actually bring justice to the victims of 9/11 who have suffered
so much in the horrible attacks, we want a system that works,
that is going to sustain--that is going to be sustained over
the long-term.
And what we have instead is a system that is woefully
deficient on paper and in practice and is likely to get struck
down. And so I think that this body does need to pause these
military commissions, take a deep breath, and figure out,
``What do we really want our trial system to look like? And let
us figure out what structural guarantees shall we put in place
to make sure it stands the test of time and metes out
justice?''
Mr. Spratt. Are you concerned about the delays it may cause
and the concerns on the part of counsel, like Mr. Oleskey, that
it could deny his clients speedy justice?
Mr. Katyal. Oh, I am deeply concerned about that. I
certainly don't think that Congress should interfere with the
ongoing process at this point in habeas corpus hearings that
judges in the Washington, D.C., courts are undertaking at this
moment. I think we should actually use that as a basis for
legislation, if any, in the future.
But with respect to the military commissions, this novel,
unprecedented system, yes, I think they need to be put on pause
now, which is the fastest way to mete out justice, because we
are going to have these trials. We are going to have years of
appeals. The system is going to get struck down, and we will
all be at the starting point once again in 2012, 2013,
something like that, with no convictions.
We are six and a half years after 9/11. Only half of one
trial has taken place at Guantanamo. The system keeps getting
struck down because there is a rush to judgment. And, instead,
I think it is important to take a pause and adopt a durable
system instead.
The Chairman [presiding]. Thank you very much.
Dr. Gingrey, five minutes.
Dr. Gingrey. Thank you, Mr. Chairman.
My question is going to be directed toward Mr. Klingler,
but let me kind of set the stage first. Those before us today
argue in favor of more rights for the terrorist detainees,
implying that their detainee is motivated by something other
than a simple desire by the President and likeminded Americans
to keep our Nation safe.
We are trying to balance the rights of these detainees as
human beings with the rights of the American people to be safe
and secure. We have bent over backwards to protect the
detainees' rights, providing them with a forum to challenge
their status and detention, which, by the way, I think goes
beyond the Geneva Conventions, which do not bestow rights to
challenge detention or the opportunity to be released prior to
the end of hostilities on the POWs.
Many of those we are continually seeking to confer more and
more rights upon have been involved with terrorist groups that
have absolutely no respect for Geneva or international law. In
fact, they behead prisoners; they fight out of uniform; they
hide amongst women and children.
My question is, where does it stop? How far is the liberal
elite going to go to ensure that the terrorist detainees have
all the rights afforded American citizens under the
Constitution?
This is the same group of people who want to make it more
difficult for us to listen to the foreign communications of
suspected terrorists, thus more difficult to prevent terrorist
attacks, while at the same time continuing to provide more
rights to those who do commit these acts.
Mr. Klingler, this is absolutely appalling to me. Does the
review process currently in place provide the detainees the
ability to challenge their detention? And do you believe that
those we capture trying to kill us should, in turn, be provided
the rights reserved for American citizens under the
Constitution?
Mr. Klingler. There is a series of ways that detainees can
assert----
Dr. Gingrey. Mr. Klingler, if you don't mind, if you are
turn that mike directly toward your mouth, I would appreciate
it.
Mr. Klingler. Thank you. Is that better?
Dr. Gingrey. That is better.
Mr. Klingler. There are a series of ways that detainees can
now press their rights in federal court. I think the main issue
is how broad those rights should be and what interests should
be taken into account in figuring out the scope and breadth of
those rights.
I would focus on two things. One is the point that you are
making, the extent to which the detainees are U.S. citizens or
have ties to the United States. For the detainees at issue,
they don't.
And traditionally--and under established Supreme Court
precedent--for particular components of the Constitution, they
don't have the same degree of underlying substantive rights.
Now, that affects particularly the military commission process.
The second area of discussion surrounds the habeas
proceedings themselves. And there they clearly do have habeas
rights. The question there is, then how do you conduct those
proceedings in a way that legitimately reflects the military
and national security interests at stake?
And there, it is a question of what type of hearing we are
going to have. Is it going to be a trial-like hearing, a show
hearing that really brings into question a whole range of
issues surrounding Guantanamo that are extraneous to the
immediate issues before the court, in terms of the substantive
evidence supporting detention?
And is there going to be a wide latitude for judicial
policymaking in that context? Or, as the government has argued
before Judge Hogan, is it going to be a relatively
straightforward process?
And then the third is the review process that is still on
the books in relation to the federal court review of the CSRT
process. And there, the attorney general has suggested that
that is highly duplicative of the habeas proceedings and--I
understand the government is seeking to have those at least
held in abeyance. And I think that that would be appropriate.
Dr. Gingrey. In the few seconds I have got left, let me ask
you a follow-up. Does the right of the terrorist detainees to
confront their accuser mean they need to be brought to America?
Do we have to bring soldiers out of combat, as an example, so
the detainees get to confront their accuser?
Mr. Klingler. Well, I would argue that the right of
confrontation is a criminal right that wouldn't apply in the
habeas context at all and that it would be perfectly
appropriate for courts to allow that evidence to be presented
through hearsay evidence, rather than pulling American soldiers
from Iraq and Afghanistan.
Dr. Gingrey. And, finally, if the courts forced the release
of certain detainees, can they be released in the United
States? Do judges have the right to say where they can be
released?
Mr. Klingler. That is an open issue. I think that that is
very possible, and I expect that the detainees' lawyers will
argue that.
Dr. Gingrey. Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Dr. Snyder.
Dr. Snyder. Thank you, Mr. Chairman.
For you sitting at that table that are defense attorneys in
this business, I hope that you won't go out of here thinking
you are going to have opportunity that sometime to use the
Miranda absence as a way to get your clients off the hook.
There is not now--nor has there ever been--any interest by
any Member of Congress in applying the Miranda warnings to the
battlefield. And I don't know why that topic keeps coming up.
It was a red herring, every year it has been brought up since
this war began. And there is not even point in talking about.
Mr. Hunter. Would the gentleman just yield on that for one
second?
Dr. Snyder. No, Mr. Duncan. It is 11:55. Most of us have
been here for almost two hours. The clock finally has been
working after an hour and 50 minutes. It wasn't used. And I am
going to take the remaining time I have.
You will have all the time, unlimited time you want to when
the rest of us are done. And let me please finish my question,
because I don't have----
Mr. Hunter. Well, then if the gentleman is going to bring
up an issue that I brought up, and he wants to discuss it in a
meaningful way----
Dr. Snyder. Mr. Chairman----
Mr. Hunter [continuing]. I hope he would give me the
opportunity to respond to it, because that issue was brought up
and that was offered as a part of the UCMJ.
Dr. Snyder. Mr. Chairman, I would respectively request that
my five minutes be begun anew.
Mr. Hunter. And I would second his request. I think that is
fine.
The Chairman. Start the clock over again.
Dr. Snyder. Thank you very much.
The Chairman. There.
Dr. Snyder. I will repeat what I had said, which is there
is no interest in this Congress in applying any Miranda warning
to the battlefield. And if anyone were to apply it, I can
assure you that every Member of Congress and the American
people would be shocked and would not want that. So don't--you
defense attorneys, don't take heart by anything said here
today.
Colonel Davis, what I wanted to ask you about was--in your
statement, I sensed almost hopelessness that the military
commissions can ever be revived with the integrity that you
thought they would have at the beginning of it. But you--a
glimmer of hope when you give four suggestions about how to
give them. And I want to read what you say in your statement.
One of them is ensure the independence of each component in
the military commission process. Another one, make openness and
transparency of the proceedings an imperative. The fourth one,
expressly reject the use of evidence obtained by undue
coercion.
It is the first one that concerns me the most here, in
which you say put the military back into military commissions
and take the politics out. And then your written statement you
provide to us--and you are very clear. You highlight, ``Take
the politics out.''
And, unfortunately, we have had over the last several years
too many examples in our justice system in this country of
political influence, this most recently in the report that has
just come out in the last few days, in which officials in the
Justice Department have been castigated by the Justice
Department for political influence. And Monica Goodling, I
think, has been very candid about her having stepped over the
line. And this obviously is not over yet.
As I read your written statement, you are at least
implying, if not alleging, that you thought there was political
influence being exerted leading up to the 2006 congressional
elections in this country and then also that political
influence was being exerted perhaps to help Prime Minister
Howard in Australia, who subsequently lost his election.
Is that your allegation here?
Colonel Davis. Yes, sir. And I think I described in a
statement--it was September, I believe, 28th of 2006 was when
Deputy Secretary of Defense Gordon England, right after the
high-value detainees were transferred to Department of Defense
(DOD) custody, said that there could be strategic political
value in getting some of them charged quickly, which was, you
know, weeks before the November midterm elections.
Dr. Snyder. I think in your written statement you said it
was six weeks before the 2006 election. You know, I think you
are all--Mr. Hunter has been very eloquent today, as have some
of you, about the importance of these trials is it is not just
our safety. It is bringing justice to those families that lost
so many people on September 11, 2001.
And to see this process--you may not be right, Colonel
Davis. You are a very well-respected man. You may not be right
in your allegation, but I think, Mr. Chairman, these
allegations concern me as much as anything we have read today,
that it is not just some political appointee stepping in, in
the spirit of, ``Colonel Davis, you are not doing this job well
enough,'' but stepping in, in the spirit of trying to influence
an ally's election or trying to influence the congressional
election.
I don't know where this aspect of this hearing today is
going to go, but it is very concerning to hear a man of your
experience and the position that you held in Guantanamo make
those kind of allegations.
And, Mr. Chairman, I will yield any remaining time I have
to Mr. Hunter for any comments he wants to make about the
Miranda warnings.
Mr. Hunter. Well, I thank my colleague for yielding and
would simply say to my colleague that that was--that when we
had our testimony, with respect to what body of law we were
going to follow when we put together the MCA, we had witnesses
who testified that they thought the UCMJ, the Uniform Code of
Military Justice, was the right blueprint.
Now, it was important for us to establish what
ramifications that would have. And when I asked the question,
what would that mean on the battlefield?
In fact, the very colonel you have in front of you here,
who I think you find to have some good degree of credibility,
testified, if we adopted that--and you may recall, that was
actually recommended by several Members of the Senate who were
initial architects of the bill, that we follow the UCMJ, he
testified to us, he said, ``You can't do that.'' Or he said,
``If you do it, you are going to require Miranda on the
battlefield.''
So that is not a red herring that is thrown up as a matter
of something that is trivial to the discussion. That was a real
ramification of a substantive direction that was testified to
by witnesses and recommended by some of the architects of the
bill.
We are now looking at some expansions that may take place,
in terms of the rights of the accused. I think it is an
absolutely appropriate question to ask him.
And I thank the gentleman for yielding to me so that I
might describe that.
The Chairman. The time has expired.
Mr. Bartlett.
Mr. Bartlett. Thank you very much.
We are a very blessed people. We are 1 person out of 22 in
the world, but we have a fourth of all the good things in the
world. I have often asked myself the question, ``Why?''
It is certainly not because we have the world's best work
ethic. All you have to do is look at some of the immigrants
that are among us, and that will be clear.
It is not because we have the most focus on technical
education. This year, India will graduate three times as many
engineers as we graduate and China will graduate six times as
many engineers as we graduate.
It is not because we have the most commitment to the
nuclear family. Nearly half of our children are born out of
wedlock.
There may be other reasons, but I think that it is largely
because of our enormous commitment to civil liberties. There is
no other constitution or no other bill of rights in the world
that comes close to ours. I think this has created, established
an environment in which creativity and entrepreneurship can
flourish.
To deny these rights, I think, puts at risk that we can
continue to be who we are. If we set aside these great
constitutional guarantees, even for national security reasons,
have we not admitted that the enemy has already won?
And most important security of all, the insurance of our
civil liberties, is seriously at risk because, who next by
edict might be denied these great constitutional guarantees?
Therefore, I was very dismayed by our Gitmo statement that,
one, since the detainees were unlawful combatants, they should
not be afforded the protections of the Geneva Conventions--I
don't know how they thought to get around Geneva IV--and, two,
since they were not on U.S. soil, the constitutional
protections did not apply.
One might logically conclude from these statements that we
intended to treat these detainees in ways precluded by the
Geneva Conventions and our Constitution. The constitutional
issues seem very clear to me. If they were under our control,
no matter where they were physically, our Constitution applied.
Even if I agree that unlawful combatants should not be
afforded Geneva Convention protection, how can I know that they
are unlawful combatants minus a court trial that found them so?
My declaring them so doesn't make it so. Does not the simple
declaration that a detainee is an unlawful combatant violate
our treasured presumption of innocence?
If we affirm our right to do this, even for national
security reasons, have we not put at risk the rights of all of
us, because by simple edict, in some future emergency, any of
our constitutional protections could be set aside.
Where have I gone wrong in my thinking?
Mr. Klingler. That is a question to me, is it? I agree with
most of what you said. I think that national security should
not trump constitutional rights.
I think, though, that what is at issue is what the scope of
those constitutional rights are. I don't think--and I don't
think that the courts' precedents support the conclusion that
simply because a person is under the control of the U.S.
military or even at Guantanamo outside of the United States
proper, that the full range of constitutional rights apply.
I would direct you to Verdugo-Urquidez and the case decided
there, some of the insular cases. So the issue isn't balancing
or setting aside constitutional rights, but ensuring that there
is a clear understanding of what those are and that there isn't
an assumption that, simply because the suspension clause has
been held to apply to Guantanamo, that the full range of
constitutional rights does so.
I don't think that is what the Supreme Court said. I don't
think that is how you can fairly read the decision.
Mr. Bartlett. Thank you very much, Mr. Chairman.
The Chairman. Thank you.
Loretta Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman. And thank you,
gentlemen, for being before us. I know some of you have been
before us before.
You know, I think we find ourselves in this position
because it really was the job of the Congress to provide for a
structure for the military commissions. And we just didn't do
it. We allowed the Administration to do it. I believe they did
a bad job of it.
I know that I had legislation in a bill drawn many years
before we ever got to the Military Commissions Act and asked
both the chairman and the ranking member at that time to give
us a hearing on it and, unfortunately, didn't happen.
After three court rulings, including Supreme Court rulings
with Hamdan, all of a sudden we realized it was our job,
Article I, Section 8, to do this. And we put forward an MCA,
one which I voted against, by the way, in particular because of
the habeas issue.
So here we come back again with the same issue. In fact, I
had some legislation, a revised bill, H.R. 2543, which we have
been revising with this latest court case to address some of
the problems created by the MCA.
And Justice Kennedy, in his majority opinion, invites us,
us, the Congress, to find innovative solutions. That is on page
67 of the opinion. And he also states that certain
accommodations can be made to reduce the burden of habeas
proceedings that are placed on the military without
impermissibly diluting protections of the writ. And that is
also on page 67.
So I think we do need to address this. And at the same
time, I believe that we must give due deference to military and
intelligence considerations in defining the terms and the
procedures that will govern the writ going forward.
You all were just asked--and with the exception of the
first gentleman, who was wanted to know more circumstantial
issues--you all agreed that the writ does not extend to
Afghanistan, for example.
So if the Administration closes Gitmo and moves the
detainees to a detainee facility in Afghanistan, detention
under our U.S. Army, for example, would they then be beyond the
writ of habeas? Can the Administration avoid the ruling, this
recent ruling, simply by moving the detainees back to
Afghanistan, where many of them were captured?
And I want to say that this is a very important, pertinent
question, because there are many, including Members of this
Congress, who continue for the call to close Gitmo.
And I have always felt that closing Gitmo would mean the
transfer of these detainees back to Afghanistan, where they
would have less access to the media, because it is a combat
zone, less access to this Congress, as the overseer to some of
this, again, because it is a combat zone, less access to the
International Red Cross and others.
So would these prisoners also be deprived of habeas if they
were moved back to Afghanistan? That is my question for all of
you.
Mr. Oleskey. Let me take the first crack at that,
Congresswoman. The court now has jurisdiction over--the habeas
courts have jurisdiction over everyone in Guantanamo, as far as
I know.
I don't think that the courts would permit the Executive
unilaterally to move people within its jurisdiction on pending
habeas cases to Afghanistan or anywhere with the intent of
ousting the jurisdiction of the courts. And I don't believe
that the Executive would do that, understanding and knowing
that these cases are pending.
I think Secretary Gates has made many important statements
about his views about Guantanamo. There is nothing in what he
says that leads me to believe that he would be a party to any
such action.
So while it is a theoretical possibility, I don't think the
Administration would do it. It would set up a conflict with the
courts that would be very damaging. And I think, if it was
attempted, that the courts would act to prevent it.
Mr. Katyal. Let me begin by thanking you for your historic
leadership on these issues. I wish that Congress had listened
to you many years ago. We would have had trials underway and a
system that would have been stable. And, instead, we find
ourselves six and a half years later without a trial taking
place.
With respect to closing Guantanamo, I don't think the
reason to close Guantanamo is really just about human rights of
the detainees. It is about America's self-interest. As
Secretary Rice and Secretary Gates have said, Guantanamo is a
foreign policy disaster. And so I think the reasons for closing
it are not as much about the detainees but about us.
I think if the detainees who are currently there are moved
outside to an area outside of court control, I do think that
the federal courts may have something to say about it, with
respect to those current detainees.
Ms. Sanchez. What about the future of somebody in action,
caught in the same way, and now held in the prison in
Afghanistan, controlled by the U.S. military, even though there
are Afghan laws, those necessarily wouldn't apply to our
facility holding somebody who is a combatant supposedly against
us?
Mr. Katyal. Precisely correct, that is--and I think that is
happening now, that is, there aren't many detainees being
brought to Guantanamo. And the reason Guantanamo exists, the
reason we used it in 2001 wasn't because the military liked the
weather. It was because the Bush Administration had a legal
fiction that they could bring people there and have them
outside of the control of the United States courts.
Now the Supreme Court has emphatically rejected that idea,
so Guantanamo has outlived its usefulness, in terms of being an
escape from federal court processes.
The Chairman. The gentlelady's time has expired. The
monitor is not working, but time is up.
Ms. Sanchez. I love being called on that after waiting for
two hours. Thank you, Mr. Chairman.
The Chairman. You bet.
Five minutes, Mr. Murphy.
Mr. Murphy. Thank you, Mr. Chairman. And I thank the panel
for being here today.
I would start by saying, Colonel Davis, thank you for your
service to our country. And I think it is very appropriate that
today, in your opening testimony, you cited the prosecutor for
the World War II saboteurs who said that--he said this in 2001
in his op-ed, as you mentioned--that how we prosecute al Qaeda
members will say just as much about us as it will say about
those al Qaeda members.
The petitioners in the Boumediene case simply asked the
court to make a ruling on exactly who the Administration can
indefinitely hold as an unlawful enemy combatant, pursuant to
the 2001 Authorization for Use of Military Force. The court,
however, has been silent on that issue.
In subsequent cases after the Boumediene, they make their
way through the courts, such as the al-Murri case and the
Parhat case. It is becoming increasingly clear to this
Congress, and myself specifically, that we will have to re-
examine this question in the near future.
Mr. Oleskey, as counsel in the Boumediene case, let me ask
you. In your opinion, does the 2001 AUMF allow the President to
detain in perpetuity someone who has little to no tangential
connection to al Qaeda and who is not engaged in any
belligerent acts against the United States? And a follow up:
Does the Constitution give the President this authority?
Mr. Oleskey. I think that the Supreme Court hasn't spoken
definitively to the second point, so we don't know what they
will say, but it would be my view that the implication of
Boumediene is that the Constitution does not give the President
the authority to indefinitely detain someone suspected or
accused of terrorist activity.
The Constitution and our statutory scheme say there is a
criminal justice system. And if there is terrorist activity
that is not--that disqualifies you from POW status, then you
indict the person. And we have had many examples of successful
indictments and prosecutions.
So I think that that is where we are headed on the second
question. And your first question, again, was----
Mr. Murphy. Well, one, does the Constitution give the
President the authority to do so? And then----
Mr. Oleskey. I think the better view is that you in the
Congress intended to give the President limited authority to go
after people directly involved in the atrocity of September
11th.
Instead, I think what the cases show is the Administration
used that language to pick up people all over the world on a
variety of bases, many of them people who appear to be innocent
of any wrongdoing at all, others of whom may have had some
activity with radical groups that had nothing to do with
September 11th.
The great strength of the habeas process that we are now at
last embarked upon is it should sort out who those people are
and if they have a connection to September 11th. And that is
within the authorization. Then they presumably will continue to
be held and some of those people, as we have been discussing,
would be the subject of military commissions, where they may be
found guilty or may not.
The rest ought to be found--if they are not connected to
September 11th, then not within that resolution--to be ordered
released, subject to the Executive's right to negotiate their
return to some place that is safe for them and for us.
Mr. Murphy. Yes. And I think that, as the panel understands
up here and as the members understand, obviously, this is a new
case all coming out. We are looking at--as today is July the
30th, we have had two significant cases, obviously, the Parhat
case, where we are talking about the 17 Chinese, and then al-
Murri case, where we are talking about the citizen of Qatar who
was a U.S. resident.
So to follow up on my first question, if the Parhat
decision and the al-Murri decisions, especially considering the
opinion of Judge Wilkinson, who I think we would all agree is a
conservative, but dissented in this case, and very well-
respected, especially considering his opinion of Judge
Wilkinson, if that is any guide, the Administration's broad
definition of who can be indefinitely detained under the AUMF
is going to be struck down as either unconstitutional or, more
likely, in my opinion, outside the authorization of the AUMF.
If that is the case, it is possible that many detainees
held at Gitmo and those held at other U.S. military facilities
around the world are going to be released unless the courts and
the Congress of the United States come up with a new legal
framework for deciding who will be detained.
So, Mr. Oleskey, if the court holds that the Administration
is acting outside the scope of the AUMF, how do you see a path
forward for this Congress to work in a bipartisan manner to
reach a new legal and constitutionally valid framework that
ensures that we are detaining those who are the most culpable
and pose the greatest risk, while not, as Judge Wilkinson I
think astutely noted, breaching this country's most fundamental
values?
If you could comment, I would appreciate it.
Mr. Oleskey. I think that is a fair point. I remember that
back when these cases were working their way up, Judge Green in
the district court asked the deputy solicitor general,
``Suppose a little, old lady in Switzerland is asked to send
money to an orphanage in Afghanistan. She doesn't know it is an
al Qaeda front, but American intelligence does. Do you say the
AUMF, Mr. Deputy, allows her to be seized in Switzerland by the
American military, taken to Guantanamo, and held
indefinitely?''
And the answer was, ``Yes, that is the government's
position.''
So I agree with the premise of your question, Congressman.
The definition has been treated by the Administration as hugely
overbroad and misused.
In terms of what happens, I think I disagree with Mr.
Katyal on the special courts that he has been advocating. I
think the criminal justice system is perfectly competent to
deal with people who committed crimes against the United
States.
That the crimes are unconnected with 9/11 doesn't make them
any less crimes, if they are within the scope of our federal
criminal statues, such as the bombing of the USS Cole, the
Khobar Towers bombings in Saudi Arabia, the first bombing of
the U.S. World Trade Center. Those are all examples of how our
criminal laws can deal with and have dealt effectively with
people who have committed legitimate terrorist actions.
Whether there is any role for Congress to play, I think, is
a matter that I would at least like to see you wait on while
some of these habeas cases go forward and we see what the facts
are and what the judges do. After that, as Mr. Katyal and
others have suggested here today, there may be a role for
Congress to weigh in deliberately, as your question suggests,
with a thoughtful approach to redefinition.
I don't think that would be useful now, because we have a
process that at long last is underway, in which facts are going
to be found very soon by experienced federal judges.
Mr. Murphy. Thank you, sir.
Would anyone else on the panel like to comment? Colonel.
Colonel Davis. Oh, I think if you try to treat these as
ordinary criminal cases, it is a naive approach. These are
not--these guys didn't rob the corner liquor store. I think
there is a war component to this.
I was not a fan of--there are a number of folks that have
pitched the national security courts in some form or another.
Initially----
Mr. Murphy. You can continue to answer. I just can't ask
anything else.
The Chairman. Go ahead and answer the question.
Colonel Davis. Okay. Initially, I was not a huge fan of it.
I still think the Military Commissions Act was a pretty good
piece of legislation that, if it was implemented properly,
could render fair trials.
I am beginning to come around to the national security
court concept. What I would like to see--I think there is a war
component to terrorism; it is not your ordinary Title 18 type
of crime--would be a national security court that combines both
military and federal judges and takes the best aspects of the
Military Commissions Act, the CIPA procedures, and federal and
military law.
Because I think what--you know, we keep talking about
Guantanamo, and that is the immediate, you know, issue in front
of us, but I think this is a longer term issue. And whatever
the solution is needs to address the Guantanamo problem, plus
terrorism, you know, over a longer perspective.
And, again, I think Guantanamo is grossly mischaracterized.
I mean, I used to be a bail bondsman, so I have seen a lot of
jails. It is a pretty decent place, but it has become such a
blight on the country that perhaps it is worth closing it just
to--or try to erase that stain.
Mr. Murphy. Thank you, gentlemen.
Thank you, Mr. Chairman.
The Chairman. Yes, thank the gentleman.
You will note the monitor is working again.
Mr. Murphy. Yes, sir.
The Chairman. Mr. Cummings.
Mr. Cummings. I would direct this to all of you or whoever
wants to answer. First of all, I think it is very important
that--and I know you all share this--that we safeguard our
Constitution and the rights under that Constitution. I think
this is our watch and we have a duty to do then.
Boumediene suggested that habeas corpus might not be
constitutionally required if there were suitable alternative
processes in place to protect against the arbitrary exercise of
governmental power.
As such, do you believe that the comprehensive protective
laws governing prisoners of war under the Third Geneva
Convention, which the United States has decided is inapplicable
to members or affiliates of al Qaeda or the Taliban, but which
would be applicable in almost any conceivable future armed
conflict against another nation-state, should be applied to
detainees, particularly those suspected of being affiliated
with al Qaeda or the Taliban?
If you do believe that such obligations should be afforded
to these individuals, what dangers exist in the United States
failing to ensure that these detainees' rights are protected as
POWs?
How can we ensure as a Nation that we are balancing our
priority of protecting our Nation from any prospective act of
terrorism, something that we must do, while ensuring that
current detainees, even those that may be allegedly associated
with terrorist organizations, are provided with the protections
that they are deemed to have under the international
humanitarian law and customary law?
Mr. Oleskey. I would say, if the Administration had adhered
to the Geneva Conventions, we wouldn't have had these Supreme
Court cases and we wouldn't be having this hearing today. We
would have a very different kind of situation.
As I said earlier, if there are people who have committed
violations of international law and American law, there are
recognized procedures to follow.
The military commissions are being criticized here by lots
of us for not providing adequate protection, but the same
people on the panel and in the Congress who are criticizing
that process are recognizing, as your question does, that we
need some way to protect the United States against terrorists
and ensure that they don't commit crimes again.
So whether it is an enhanced military commission, whether
it is a special national security court, there is nothing
inconsistent with those approaches to effectively criminalizing
terrorist behavior in a different way, in a different process,
and still treating people who are not put before those
proceedings as POWs in accordance with international law.
So I take the premise of your question to be that we can
both protect the country and respect our international
obligations in a way that makes us, again, a beacon for the
world in these areas and not the embarrassment we have become
because of Guantanamo. And I agree with the premise.
Mr. Cummings. Well, going back to something that Mr. Davis
wrote in his testimony--and he talked about how criminals we
are punishing sort of after the fact, and these detainees are
sort of before the fact, we are trying to prevent.
And, you know, I guess that does present a very different
kind of set of circumstances when you are trying to prevent
something from happening, as opposed to saying you did
something and now we are going to punish you.
And I am just trying to figure out, where did that concept
come from, that prevent concept?
Mr. Oleskey. Well, in the law of war, it comes from the
notion that an enemy soldier can be lawfully held during the
duration of the conflict so that he cannot return to the
battlefield.
But what the Administration has said is that the whole
world is a battlefield, not just Afghanistan or Iraq, and
therefore anybody picked up who can be claimed to be a member
of some radical group or terrorist group, or that knows
somebody who is, or to provide some support, however innocently
to that group, can be held as if they were a POW for the
duration of the war on terror, which, as Justice O'Connor said
back in 2004, could be for the rest of your life.
So that preventive function that comes out of the law of
war doesn't apply as the Administration has applied it. And
that is why we have had these cases.
Mr. Cummings. Thank you very much.
The Chairman. I thank the gentleman.
Mr. Hunter.
Mr. Hunter. Thank you, Mr. Chairman.
And, gentlemen, thanks for being with us and for spending
as much time as you have. And, of course, this is very timely
that you are with us.
But we have got this problem. You have got--the habeas
right has been extended by the Supreme Court decision. And you
have the prospects now of habeas being applied for--and
presumably before many, many federal courts by many folks who
are presently detained.
And the question is, is it appropriate for us at this point
to have a direction, to put together some guidelines? I
noticed--I think it is--the D.C. Circuit said, if Congress is
going to do this, now is the time, because it looks like we are
going to have the need for directions. I am paraphrasing, but
that is essentially their statement.
You know, if you look at the--if you are a court that has
been petitioned for habeas, and let us say you have a guy who
says, ``You know, I was picked up on a sweep in a firefight in
an Afghan village, and I was apprehended because I had an AK or
I had some ammo, and the reason I had that is because I am part
of an ad hoc security service,'' or, ``I am out protecting the
flock of sheep that this particular village maintains. And I
got picked up wrongly.''
In a way, the farmer in the field argument that has been
made a lot of times at Guantanamo--in fact, we have released a
number of people at Guantanamo, as the colonel knows. A few of
them went back and picked up arms against us, so we made a
mistake in that case. We were too lenient and made a mistake of
judgment.
But my point is, that is thrust in the lap of a federal
court. Now, here is a court in the United States. And the
habeas--and they ask--they hold a little prayer meeting with
their staff and their judge and say, ``How do we conduct this?
What is the extent of our review? Do we try to get villagers
from this small village in Afghanistan? Do we try to pull back
members of the military who are in that particular squad from
the 10th Mountain Division that made this sweep?''
It looks to me like it is going to be a very, very--without
a prescription for how far they look, and what they do, and
whether or not they have essentially a trial on the merits, it
looks to me like you are going to have 101 different recipes by
different courts as they try to figure out what we want them to
do, in terms of a habeas review.
So what are your thoughts on this? How do you--do you think
there is a danger of having--going off in 50 different
directions if we don't have a prescription, or a recipe, or a
set of directions as to how the court proceeds on this or how
the courts proceed on this?
Mr. Katyal. Let me begin by saying I don't think that there
is some immediate crisis. We are only a month or so after the
Supreme Court's Boumediene decision. I think we should let that
process play out, as Mr. Oleskey says, with experienced federal
judges. And that will then inform what this body does.
I am very worried about the number of misperceptions that
have happened in this debate thus far in the past month. I
mean, Representative Hunter, you know more about this issue
that almost anyone, and yet you opened the hearing today by
saying--and I think I am getting this quote exactly right--
``The right to habeas corpus is something no American soldier
enjoys.''
But, of course, since 1890 in the In re Grimley decision,
the Supreme Court has extended habeas corpus rights to American
soldiers.
Mr. Hunter. No, no, not as a POW.
Mr. Katyal. American soldiers have habeas corpus rights.
They can't be POWs because they are, after all, our own
soldiers.
Mr. Hunter. No, but I am talking about an American soldier
who is a POW held in another country. And presumably I would
think that would apply to POWs who are in other militaries. We
don't have--when we had our German camps of soldiers in this
country, did we allow them to have habeas?
Mr. Katyal. If you are talking about other soldiers--I am
sorry, I thought your statement----
Mr. Hunter. I am talking about--yes.
Mr. Katyal [continuing]. I thought you had said a couple of
times that American soldiers did not have habeas corpus rights,
and American soldiers----
Mr. Hunter. That is exactly what I meant. An American
soldier held as a POW doesn't have that right--obviously, it
would be extended by another country, nor do we, to my
knowledge, extend that right to other soldiers when they are a
POW of our country.
In other words, a POW, whether you say he is a German POW,
an Italian POW, an American POW, does not have that right. And
yet people who are essentially soldiers in this war against
terror now have, according to this five-to-four decision, have
a habeas right. So we have extended a right which hasn't
extended to combatants in a war, okay?
Mr. Katyal. Sir, in the Ex Parte Kiernan decision in World
War II, the Supreme Court extended the writ of habeas corpus
both to Americans and to enemies, Nazi saboteurs. So it has
been around for a while.
Mr. Hunter. Those were not soldiers.
Mr. Katyal. They were enemy--unlawful enemy combatants.
Mr. Hunter. They were not soldiers, were they?
Mr. Katyal. They were----
Mr. Hunter. And so the point that I made was absolutely
accurate. And that is part of--and I am not trying to beat you
down, but that is the problem we have here. You have a
soldier--let us say he is in Saddam Hussein's army--and he
shoots at Americans with his AK-47. He has a certain bundle of
rights, but a very limited bundle of rights, when he is
captured.
That same person now decides he is going to be a terrorist,
and he sheds the uniform, and he does something against
American troops, and he ends up in Guantanamo, he now has a
very different bundle of rights, indeed, one that we are
defining right now with this list of rights that people have
under the DCA act.
So my point is, in ways--it is interesting that in ways we
have expanded the rights for people who are killing Americans
in battlefields and who are engaging in what heretofore in some
cases was a war that was undertaken by people in uniform.
And that is why I think--and that is why I brought up the
point--and the colonel buttressed this point--when we had
Members of Congress who said, ``Let us give a UCMJ right,''
that is why we brought up the fact that, in fact, that did,
indeed, encompass certain things like Miranda that would now
have to be attached to that person's bundle of rights.
So my question is, you are a federal judge. You have
extended a habeas right to a person who says, ``Hey, I was
caught up in this sweep in this remote village.'' Aren't you
going to have a real difficulty? Because much of whether or not
that person was here is now being lawfully held turns on the
facts, and the facts are whether or not he was, in fact,
protecting the sheep with his AK-47, protecting the herd, and
he was caught up in a sweep, he was a farmer in a field, and he
was not purposefully attacking American forces as the rest of
the people were.
That is going to depend on the facts. And the ability of
that court to retrieve those facts from a battlefield
situation, which dissipated years ago, I think is going to be
very difficult as a practical matter. Don't you agree with
that, that that is going to be tough to do?
Mr. Katyal. Courts can always appoint special masters. They
have that existing power to go--and so they could have a
military apparatus do the first cut of that. My fundamental
point is this----
Mr. Hunter. Okay, but now let me--I want you to answer this
question, though. You can appoint all the masters you want, but
how do you, in a real sense, ascertain what the facts were
three years ago in a remote village in Afghanistan as to
whether or not this guy really had a rifle or not?
Mr. Katyal. And that is what----
Mr. Hunter. Or had a rifle that he was using against
Americans?
Mr. Katyal. And Representative----
Mr. Hunter. That is my question.
Mr. Katyal. And that is what we warned about three years
ago and five years ago. Let us have a system in place that is
the Geneva Conventions to do that initial sorting. We didn't do
that. And so now we find ourselves in a mess.
Mr. Hunter. But you haven't answered the practical
question. We are at where we are, and you are now going to have
habeas proceedings. How will a federal court today some place
in the United States be able to reach back and retrieve facts
so that they can give this defendant a fair hearing on whether
or not he was picked up in a sweep and, in fact, was not part
of a body of illegal combatants?
Mr. Katyal. We have experienced federal judges with
investigative tools and the power to use special masters. Let
us let that system play out and see what happens, instead of
just cutting them off at the get-go and saying, ``You are
incapable of doing this.''
Mr. Hunter. Well, I think--I am not saying we have to tell
them they are incapable, but once again you have used the
statement ``special masters'' and they have certain powers. In
a practical sense, it is going to be difficult, I think, to do
that and give the guy a fair shot at--if he wants to have
essentially a little trial on the facts as to whether or not he
was illegally picked up. You are going to have to be able to
reach back and get people who have long since dissipated from
the battlefield scene.
And let me ask the other gentlemen what they think about
that. Do you think that is going to be practical to be able to
have without guidelines to have all these federal courts trying
to come up with what they think is a fair habeas proceeding? Or
do you think we should let it go and see if they can do it?
Colonel Davis. Sir, I think the court in Boumediene I think
reluctantly got into the fray. I mean, I think, as they say,
had there been a viable, meaningful process in place to
determine, you know, who is the sheep-herder from who is the
terrorist, you know, who really is the enemy, had there been a
meaningful process in place, I don't think the court would have
intervened.
But we are stuck now with, you know, the court inserting
itself into this process. So I think, you know, had we a year
ago fixed the CSRT process to make it a meaningful review, we
might not be sitting here today.
Mr. Hunter. I know. But we are here today, Colonel.
Colonel Davis. Right.
Mr. Hunter. So what do we do?
Colonel Davis. Well, again, I think we have got to look
at--number one, you know, the immediate issue is Gitmo and what
do we do with the 265 guys sitting at Gitmo? The solution has
to be bigger than that, as what do we do with the next group
that comes along behind that? So, you know, Gitmo is the
immediate problem, but this really requires a long-term
solution. There needs to be a robust, meaningful process to
sort out the enemy from the----
Mr. Hunter. But, see, in the end, what you are going to
have is basically battlefield reports, which are very sketchy.
They are not detailed.
Mr. Klingler, do you have any comments? Do you think this
is going to be doable by the federal courts?
Mr. Klingler. I think the courts have already asked for
some help in this. The questions that they have already posed
indicate that they are tremendously difficult issues in front
of them.
The pleadings that have been filed already indicate
tremendous divergence in whether we are going to have something
approaching a full-blown trial or something that is very
streamlined and efficient.
I do think that there is a path through this. I think it
needs legislative help. I think it is the congressional
imprimatur on standards of deferring to the government and the
military's determinations, once they put forth a substantial
degree of evidence and a streamlining of the process, to avoid
the questions that you are--and the difficulties that you are
pointing to.
Mr. Oleskey. I would say, Representative, that the problem
has been so far that all the issues that we have confronted
have been abstract legal principles. Does habeas extend? Where
does it extend? Now we are getting down to where the rubber
meets the road, which is what trial judges do. They sort out
the facts.
I acknowledge the premise of your question. There will be
some cases where the facts are difficult. The Supreme Court
already said in 2004 that perhaps you would have to have
something called a declaration in that case which would
summarize the evidence, subject to limited cross-examination of
the person making the declaration.
But that is what courts do. And the notion that we can give
you enough wisdom here to figure out a template for 275 cases
to resolve the disgrace that Guantanamo has become, correctly
or not, I think is far-fetched.
Let that process go on. Let the facts get sorted out.
Judges can handle these issues, as Professor Katyal said. If
out of that mix the whole system still cries out for a
legislative fix, then I think you should take another look at
it, yes.
Mr. Hunter. You don't think there is a problem with having
all these different federal courts without us laying out a
template for how you do this? You don't think there is a
problem with these courts going off in a lot of different
directions?
We have all agreed that the evidence in a lot of cases will
be very, very skimpy, because it is coming--it is not coming
from a crime scene. It is coming from a battlefield. And so if
you have a court that says--what if you have a court that says,
``You know, I can't give this guy a fair trial because I can't
find anybody in that village, we can't retrieve any of them, we
can't ascertain who was in that Marine unit or where they are,
so we think we have got to let him go,'' is that a possibility?
Mr. Oleskey. Well, as you pointed out, and as we all
acknowledge, more people have been released from Guantanamo by
Executive decision without any input from any habeas lawyers or
courts than the men who are still there.
But to your central premise, I think I disagree. There is
only one federal court hearing these cases by design. That is
the United States District Court in Washington, D.C., right
down the street. There is only one circuit that will hear these
habeas appeals, the D.C. circuit, which has already weighed in
under the DTA and the habeas, so----
Mr. Hunter. So you think they will come up with a fairly--
with a good structure?
Mr. Oleskey. I think they will come up with a thoughtful
approach that will, since it is being run through only two
judges, command respect and conformity by the other judges.
And if they are wrong, there will be an appeal. And at that
point, when it appears there is still a dispute about some
basic legal principle, as opposed to the facts about whether a
man was a sheep-herder or a rifleman, then you may decide to
get involved, yes. But I think now is not that time.
Mr. Hunter. Okay. Thank you very much, Mr. Chairman.
Gentlemen, thank you for your time today.
The Chairman. Gentlemen, thank you. We have three votes
that have just been called for. And we have no further
questions for you.
However, we must tell you we appreciate your expertise and
your testimony today. It has been very, very helpful. And we
hope to see you again. Thank you.
[Whereupon, at 12:39 p.m., the committee was adjourned.]
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A P P E N D I X
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